City of Indianapolis v. L & G Realty & Const. Co., 19192

• Docket Nº: No. 2
• Citation: 170 N.E.2d 908, 132 Ind.App. 17
• Case Date: December 16, 1960
• Court: Court of Appeals of Indiana

Page 908

170 N.E.2d 908 132 Ind.App. 17 CITY OF INDIANAPOLIS, a Municipal Corporation, Appellant,
v.
L & G REALTY & CONSTRUCTION COMPANY, Inc., Appellee. No. 19192. Appellate Court of Indiana, Division No. 2. Dec. 16, 1960.
Rehearing Denied Jan. 26, 1961.

[132 Ind.App. 20]

Page 910

Michael B. Reddington, Corp. Counsel, John J. Dillon, City Atty., M. Walter Bell, Asst. City Atty., Indianapolis, for appellant.

Harry M. Stitle, Jr., Indianapolis, Richard W. Adney, Lebanon, for appellee.

GONAS, Judge.

This case is now, for the second time, brought to our consideration, the first being

Page 911

L. & G. Realty & Construction Company, Inc., v. City of Indianapolis, 1957, 127 Ind.App. 315, 139 N.E.2d 580, 582 (Transfer denied).

As stated in the opinion in the first appeal:

'The appellant, L & G Realty & Construction Company, Inc., alleging ownership in itself brought two actions in the Circuit Court of Marion [132 Ind.App. 21] County, against the appellee, City of Indianapolis, as sole defendant, setting out in each a description (not in dispute) of the particular property in controversy, one action seeking damages for the alleged wrongful taking and use of certain of the property and the other to quiet title thereto.'

After the formation of the issues both causes were venued to the trial court where they were consolidated for the purpose of trial. A trial by the court upon a joint stipulation of facts, resulted in a general finding and judgment following the overruling of the appellant's motion for a new trial, duly filed. The sole error assigned here is the overruling of the motion for new trial. The judgment entered in favor of the City of Indianapolis following the first trial, was reversed with instructions to sustain the motion of L & G Realty & Construction Company, Inc., for a new trial.

Thereafter, the cause was venued to the Boone Circuit Court and from there, the causes were consolidated and a final venue was taken to Montgomery Circuit Court. On June 6, 1957, a pre-trial was held with both parties present by counsel and entered into a stipulation that:

'the evidence in this case shall consist of all the exhibits introduced into evidence in the trial in Lebanon, Indiana, in the Boone Circuit Court, and it is also stipulated that the testimony of Maten G. Gerdenich, as introduced in the Boone Circuit Court can be reintroduced here by reading of that portion of the official reporter's notes, and it is further stipulated that the City of Indianapolis, reserves the right to introduce any further evidence material under the issues of the pleadings herein.'

On the same day the cause was set for trial for June 12, 1957. On the day set for trial the City of Indianapolis[132 Ind.App. 22] filed its affidavit for a change of Judge, signed by the Mayor of that City.

'On account of the bias and prejudice of said Judge against said City of Indianapolis, as such defendant and which bias and prejudice this affiant says now exists, all of which has only recently come to the attention of this affiant.'

A change of Judge was denied and appellant presents this ruling as error.

Changes have been made in the Rules of the Supreme Court since that ruling, but at the time of the ruling of the trial court the applicable Rule of the Supreme Court was Rule 1-12, which then read, in part, as follows:

'An application for change of judge, as now provided by law, shall be filed at least ten (10) days before the date set for the trial, or if a date less than ten (10) days in the future is set for the trial, the application shall be filed within two (2) days after the setting of the case for trial.'

In State ex rel. Chambers v. Heil, 1951, 229 Ind. 176, 96 N.E.2d 225, 226, the Supreme Court said:

'For many years it has been held in Indiana that local court rules fixing the time within which an application for change of venue from the judge must be filed must yield when the application shows that the reason for the change was not discovered within the time allowed, and the application has been made within a reasonable

Page 912

time after the discovery of the existence of the grounds for a change. * * *

'That part of Rule 1-12 with which we are dealing merely supersedes local rules on the subject. It must and should be construed and applied as such local rules have heretofore been construed and applied.'

[132 Ind.App. 23] Here, the affidavit for change of judge does not state that it was made and filed at the earliest opportunity after the discovery and knowledge has come to the mind of the moving party of the existence of bias and prejudice on the part of the judge. It merely alleges that such bias and prejudice has only 'recently' come to the attention of the affiant. We find nothing which would require that the provisions of Rule 1-12 be related in this case, and there was no error in denying the change of judge.

Appellant thereupon filed its motion to withdraw the stipulation made at the pre-trial conference, which motion was overruled. Appellant's entire argument on this point is as follows:

'Attorneys cannot stipulate who is entitled to or the amount of damage awards, or benefits from taking of property for city improvements, such procedure being exclusively in the Board of Public Works and a stipulation of this kind was illegal. City of Indianapolis v. Link Realty Co. (1932) 94 Ind.App. 1 [179 N.E. 574].'

'Neither can a stipulation give effect to a fact intended to be controverted. Groves v. Burton, 1955, 125 Ind.App. 302, 123 N.E.2d 705.'

In City of Indianapolis v. Link Realty Co., supra, it was held that the legal effect and interpretation to be given the facts there stipulated was not a proper matter of agreement. That case did not involve any question as to the damage awarded, or benefits from the taking of property for improvements. In Groves v. Burton, supra it was held that in interpreting a stipulation it will not be so construed as to give it the effect of admitting a fact obviously intended to be controverted. Appellant makes no attempt whatever to show how any point of fact or law is applicable[132 Ind.App. 24] to the present case, as required by Rule 2-17(e), hence no question is presented.

Appellant then filed its motion for authority to withdraw its answers and to replead, which motion was overruled. Such a motion is addressed to the sound...