Cherokee Drilling Corp. v. Gibson County Bank, 1--175A6
| Decision Date | 06 November 1975 |
| Docket Number | No. 1--175A6,1--175A6 |
| Citation | 336 N.E.2d 685,166 Ind.App. 457 |
| Court | Indiana Appellate Court |
| Parties | CHEROKEE DRILLING CORPORATION et al., Defendants-Appellants, v. GIBSON COUNTY BANK et al., Plaintiffs-Appellees. |
Timothy R. Dodd, Evansville, for appellants.
David C. Luecking, Hall, Partenheimer & Luecking, George R. Rehnquist, Princeton, for appellees.
The defendant-appellant, Cherokee Drilling Corporation (Cherokee) appeals a judgment of foreclosure of first and second mortgages held by the appellees, Gibson County Bank and Clemens upon Cherokee's property.
The three issues presented upon appeal are whether Cherokee was served with all pleadings required to be served under Ind. Rules of Procedure, Trial Rule 5, whether the motion for change of venue was properly denied, and whether Cherokee received proper notice of the sale of the subject real estate.
Finding no reversible error we affirm the trial court's judgment.
The Bank filed its complaint for foreclosure of its first mortgage against Cherokee and Clemens, the second mortgage holder, on December 4, 1973. On January 4, 1974, Cherokee was defaulted for failure to appear or file a responsive pleading. On January 15, 1974, Clemens filed a cross-claim against Cherokee for foreclosure of its second mortgage. On January 25, 1974, an appearance was entered for Cherokee and an answer was filed to Clemens' cross-claim on April 15, 1974. Cherokee filed a motion for change of venue from the county four days later, on April 19, 1974. The motion was denied on May 10, 1974, and the case was assigned for trial on May 31, 1974. On the day of trial, Cherokee failed to appear and was defaulted by Clemens. The Bank advised the court by a 'supplemental complaint' of further delinquent taxes and abstract expenses. This pleading was served upon Cherokee the day of trial by depositing in the mail. Trial was held and evidence presented. Judgment of foreclosure of both the Bank's and Clemens' mortgages was rendered and the subject real estate was sold upon statutory notice at a sheriff's sale to the highest bidder. Cherokee brings this appeal.
Cherokee first contends that it was denied the right to answer the allegations of the supplemental complaint where the pleading was served by mailing on the day judgment was entered. Cherokee argues that this procedure of necessity meant that the supplemental complaint could not have been received until after the judgment entered and thus violated TR. 5.
Trial Rule 5(A)(2) provides that each party shall be served with 'every pleading subsequent to the original complaint.' However, TR. 5(A)(6) provides, in pertinent part:
'No service need be made upon parties in default for failure to appear, except that pleadings asserting new or additional claims for relief against them shall be served upon them . . ..'
In the present case, Cherokee had been defaulted for failure to appear prior to the time the supplemental complaint was served. Thus, service of a subsequent pleading was not required unless it asserted new or additional claims for relief.
The supplemental complaint filed with the court in the present case merely apprised the court that additional delinquent real estate taxes had accrued and additional abstract costs had been expended for purposes of the trial. It did not assert new or additional claims for relief. Service of the pleading upon Cherokee was not required by TR. 5.
Cherokee next contends that the trial court erred in denying the motion for a change of venue. The proceedings relevant to this issue are as follows:
December 4, 1973 Bank files complaint for foreclosure of first mortgage.
January 4, 1974 Cherokee defaulted for failure to appear or plead.
January 15, 1974 Clemens filed cross-claim against Cherokee to foreclose second mortgage.
April 15, 1974 Cherokee filed answer to cross-claim.
April 19, 1974 Cherokee filed motion for change of venue.
May 10, 1974 Motion for change of venue denied.
Ind. Rules of Procedure, Trial Rule 76 provides for a change of venue in a civil action without a showing of cause upon the timely filing of a motion therefor. TR. 76(2) imposes the time limit after which a motion for an automatic change of venue shall be denied:
'Any such application for a change of judge or change of venue shall be filed not later than ten (10) days after the issues are first closed on the merits.'
Cherokee asserts that the...
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...motion for default judgment. State ex rel. Hohlt v. Superior Court (1971), 256 Ind. 544, 270 N.E.2d 761; Cherokee Drilling Corp. v. Gibson County Bank (1975), Ind.App., 336 N.E.2d 685. We would also point out that the right to automatic change of venue is not waived by failure to seek a wri......
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...State Ex Rel. Hohlt v. Superior Court of Marion County, (1971) 256 Ind. 544, 270 N.E.2d 761; Cherokee Drilling Corporation v. Gibson County Bank, (1975) 166 Ind.App. 457, 336 N.E.2d 685. Since the default judgment was entered on November 6, 1981, and the Berkemeiers did not file their T.R. ......
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