Blum's Lumber & Crating, Inc. v. James, s. 772S91

• Decision Date: 15 August 1972
• Docket Number: 772S89,Nos. 772S91,s. 772S91
• Citation: 259 Ind. 220,285 N.E.2d 822
• Court: Indiana Supreme Court
• Parties: BLUM'S LUMBER & CRATING, INC., an Indiana Corporation, Plaintiff, v. Charles JAMES and Jerry James, Defendants. STATE of Indiana On Relation of Hester BAERTICH, Plaintiff, v. PERRY COUNTY COUNCIL AND BOARD OF COUNTY COMMISSIONERS OF PERRY COUNTY, INDIANA, Defendants.

Page 822

285 N.E.2d 822

259 Ind. 220

BLUM'S LUMBER & CRATING, INC., an Indiana Corporation, Plaintiff, v. Charles JAMES and Jerry James, Defendants.

STATE of Indiana On Relation of Hester BAERTICH, Plaintiff, v. PERRY COUNTY COUNCIL AND BOARD OF COUNTY COMMISSIONERS OF

PERRY COUNTY, INDIANA, Defendants.

Nos. 772S91, 772S89.

Supreme Court of Indiana.

Aug. 15, 1972.

Norman E. Hay, Cannelton, for appellant.

Zoercher, Becker & Huber, Tell City, for appellee.

OPINION AND ORDER

PRENTICE, Justice.

This matter is before us on the responses of the trial judge to our orders of July 17, 1972 to show cause, satisfactory to this Court, why a special judge should not be appointed in the above entitled causes. Our aforesaid orders, omitting captions, are as follows:

'ORDER

Defendants having filed in this Court a verified praecipe of counsel in the words and figures following: (H.I.) (copy attached) from which it appears that the defendants did, on June 29, 1972 make a good faith effort to praecipe under TR 53.2 to withdraw the submission of the above entitled cause from the Honorable David E. Evrard, regular judge of the Perry Circuit Court, and from which it further appears that said judge has actual notice of same, and there having been no notice of the withdrawal of submission filed in this Court, as required by Trial Rule 53.1(B) nor any application for extension as permitted by said rule.

The said Honorable David E. Evrard is now ordered on or before August 1, 1972 to show cause, satisfactory to this Court, by verified return to Defendants' praecipe first above mentioned, why submission of said cause should not have been withdrawn on June 29, 1972. In the alternative, this Court shall deem the submission withdrawn and proceed in accordance with Trial Rule 53.2.'

From the verified responses, we determine that the case of Blum's Lumber & Crating, Inc. v. Charles James and Jerry James was tried before the court and taken under advisement more than ninety (90) days prior to June 29, 1972, that prior to the expiration of said ninety days allowable time, the trial judge conferred informally with counsel for Plaintiff and Defendants and informed them orally of his tentative findings of fact and requested briefs upon the matters of law, which briefs were filed within said ninety day period. On May 5, 1972, the 107th day, he decided the case, but made no entry. Fourteen (14) days later he notified counsel for the plaintiff of his decision favorable to the plaintiff and directed such counsel to submit a proposed judgment entry. Although he entered the date upon his bench docket, the trial judge made no minute of his decision therein and gave no notice of his decision to counsel for the defendants. On June 29, 1972 and without having requested a decision of the judge, counsel filed an imperfect, but adequate, praecipe with the Clerk for withdrawal of submission and appointment of a special judge under Trial Rule 53.2, IC 1971, 34--5--1--1. The Clerk notified the judge of such filing, whereupon the judge informed the Clerk that judgment had been rendered prior to the filing of the praecipe and proceeded, nunc pro tunc, on July 5, 1972 to enter judgment as of May 5, 1972.

Upon the above showing, we are of the opinion that the submission should have been withdrawn as of the date of the filing of the praecipe and notice given thereof to this Court. (Trial Rule 53.2 and Trial Rule 53.1(B)).

It is elementary that the court speaks only through its official records, the primary one being its order book. Litigants are charged with notice with what they hold and that which may be properly entered. They are not, however, charged with notice of or to be prejudiced by the uncommunicated thoughts of the judge or by private communications that may have passed between him and others. The judgment herein was not properly rendered until July 5, 1972 and is a nullity by reason of the praecipe filed by the defendant on June 29, 1972.

The absence of an order book entry is correctible by a nunc pro tunc entry,...