American States Ins. Co. v. State ex rel. Jennings

• Decision Date: 20 June 1972
• Docket Number: No. 1,No. 170A2,170A2,1
• Citation: 152 Ind.App. 422,284 N.E.2d 873
• Parties: AMERICAN STATES INSURANCE COMPANY, Appellant, v. STATE of Indiana on the Relation of Carl E. JENNINGS, Relator and Norman A. Bowman, Appellees
• Court: Indiana Appellate Court

Page 873

284 N.E.2d 873

152 Ind.App. 422

AMERICAN STATES INSURANCE COMPANY, Appellant, v. STATE of Indiana on the Relation of Carl E. JENNINGS Relator and Norman A. Bowman, Appellees.

No. 170A2.

Court of Appeals of Indiana, Division No. 1.

June 20, 1972.

Howard J. DeTrude, Jr., Mark W. Gray, John T. Lorenz, Kightlinger, Young, Gray and Hudson, Indianapolis, for appellant.

Scott Ging, Maurice D. Pleak, Indianapolis, for appellees.

LOWDERMILK, Judge.

Proceedings in this case are essentially as follows: On September 26, 1967, summary judgment was entered by the trial court against appellant as to liability only and the trial court set this matter for trial on the question of damages. Trial was held and the court entered its judgment and decree on September 4, 1969. Thereafter, appellant filed a motion for new trial on October 3, 1969, which was overruled on October 14, 1969. The transcript and assignment of errors was filed after an extension of time.

The problem arises from the fact that the record erroneously states that the motion for new trial was overruled on October 4, 1969, when, in truth, the motion was overruled on October 14, 1969, as shown by the affidavit of the Clerk of the Marion Superior Court which accompanied appellant's Application for Writ of Certiorari and Petition for Rehearing.

The Appellate Court dismissed this appeal as being untimely because the record showed the Motion for New Trial was overruled on October 4, 1969, and the petition for extension of time was not filed until January 7, 1970. (This opinion is found at 268 N.E.2d 307.) At this point appellant first became aware of the typographical error in the record. Sixteen days later appellant filed its application for a Writ of Certiorari, accompanied by the affidavit of the Clerk of the Marion Superior Court, and at the same time filed its Petition for Rehearing, all of which was denied September 13, 1971, with opinion, by a four to four vote of the Appellate Court. (This opinion is found at 273 N.E.2d 306.) There was a dissent to the opinion on Application for Writ of Certiorari and the Petition for Rehearing (273 N.E.2d 306, 310.)

Our Supreme Court handed down its opinion on June 8, 1972, remanding this cause to the Court of Appeals with instructions to grant the Application for Writ of Certiorari and an opinion on the merits.

OPINION ON THE MERITS

This is an appeal from the Marion Superior Court, Room No. 3, the Honorable Glenn W. Funk, Judge; however, the regular judge did not hear this case and the appeal is from a special judge.

On May 15th, 1963, the relator, appellee herein, brought an action against Norman A. Bowman in the Marion County Superior Court, Room No. 3, alleging therein that he was a duly elected constable in Pike Township; that Norman A. Bowman, defendant in that cause, was a duly elected Justice of the Peace of Pike Township. Relator-appellee further alleged he was ready, willing and able to perform the duties as such constable, but that Bowman, Justice of the Peace, appointed certain special constables in violation of the law and refused to permit him to do his duties as the regularly elected constable of said township.

The prayer of the complaint is as follows:

'WHEREFORE, Relator prays the Court:

'(a) That the defendant, Norman A. Bowman, as Justice of the Peace in Pike Township, Marion County, Indiana, be ordered by this Court to allow the relator as the duly elected, qualified and acting Constable of Pike Township, Marion County, Indiana, to perform the duties of such office as Constable by the laws of the State of Indiana, and

'(b) That the defendant, Norman A. Bowman, as Justice of the Peace in Pike Township, Marion County, Indiana, be prohibited from appointing a Special Constable or Constables save in the manner provided by the laws of the State of Indiana;

'(c) That the Court direct a shorter time for the return of the summons and for the appearance and answer of the defendant than is provided in civil cases.'

On May 8, 1964, relator-appellee obtained a default judgment against Bowman, which is as follows:

'Comes now the Relator herein, Carl E. Jennings, and having filed herein his duly verified complaint seeking to have the defendant, Norman A. Bowman, as the Justice of the Peace of Pike Township, Marion County, Indiana, ordered by this Court to allow the relator as the duly elected, qualified and acting Constable of Pike Township, Marion County, Indiana, to perform the duties of such office as Constable by the laws of the State of Indiana, and further seeking to have said defendant, Norman A. Bowman, as Justice of the Peace in Pike Township, Marion County, Indiana, prohibited from appointing a Special Constable or Constables save in the manner provided by the laws of the State of Indiana;

'And the defendant having filed herein his amended answer in abatement upon which hearing was had and a finding for the relator herein having been made heretofor be this Court.

'And the defendant having been ordered to plead over and having failed to so do and it having been shown to the Court by the affidavit of Counsel for relator that the attorney of record for defendant has been duly notified that unless an answer to relator's petition was filed in this Court by the 4th day of May, 1964, a default judgment would be moved against said defendant which said affidavit is herewith presented to the Court and is in the following words and figures, to-wit:

'(H.I.)

'And the defendant appearing not either in person or by Counsel and the Court having heard the evidence and being duly advised in the premises, now finds that a judgment should be entered for the relator as prayed in relator's complaint.

'IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED by the Court that the relator, Carl E. Jennings, is the duly elected, qualified and acting Constable of Pike Township, Marion County, Indiana, and should be allowed to perform the duties of such office as provided by the laws of the State of Indiana;

'IT IS FURTHER CONSIDERED, ORDERED AND ADJUDGED by the Court that the appointment of Special Constables by the defendant was unlawful and improper in that such appointments were made contrary to the laws of the State of Indiana governing such appointments.

'IT IS FURTHER CONSIDERED, ORDERED AND ADJUDGED by the Court that the relator recover of the defendant his costs and charges laid out and expended herein.'

A second and separate action was filed on June 9, 1964 by Carl E. Jennings against Norman A. Bowman and American States Insurance Company as surety for Bowman. The action was on the bond executed by Bowman as a Justice of the Peace. This complaint alleges that Bowman was a duly elected Justice of the Peace; that Jennings was a duly elected constable; that Bowman and American States Insurance Company executed their bond; that Bowman appointed certain special constables who were paid $7,288.45 for services they performed and that in a prior action the appointment of special constables was held to be unlawful.

Appellant American States Insurance Company denied all allegations, with the exception of its bond.

On this action on the bond for damages Jennings then moved for summary judgment on the basis of the earlier case, heretofore referred to, in which a default judgment was taken against Bowman alone, and which judgment recited that appointment of special constables was unlawful.

Appellant American States Insurance Company countered with the affidavit of Bowman that the special appointments were necessary and authorized by statute since Jennings refused to perform certain services. Relator-appellee, in support of his motion for summary judgment, set out in his affidavit that the prior default judgment obtained in another cause by relator-appellee against Bowman showed that appellant American States Insurance Company, by answer, admitted it was surety on the bond of Bowman as Justice of the Peace of Pike Township and that a conditional examination of the plaintiff allegedly showed amounts paid out to the so-called special constables.

Appellant American States Insurance Company thereafter filed the affidavit of Bowman in opposition to relator-appellee's motion for summary judgment. In Bowman's affidavit it was averred that the relator-appellee, Junnings, failed and refused to give proper service of papers promptly and refused altogether to serve subpoenas and attachments required by this office and issued pursuant to the orders of the Justice of the Peace; that he appointed certain special constables as an emergency matter because of relator-appellee's refusal to serve the papers promptly and to perform the duties of his office; that on June 20, 1963, relator-appellee ceased all service in the court operated by Bowman and relator-appellee devoted his time to his wife's Justice of the Peace courts.

Argument...