Indiana Alcoholic Beverage Commission v. W-W Associates, Inc.
| Decision Date | 29 June 1972 |
| Docket Number | No. 372A131,W-W,372A131 |
| Citation | 284 N.E.2d 534,152 Ind.App. 622 |
| Parties | INDIANA ALCOHOLIC BEVERAGE COMMISSION, Appellant (Defendant Below), v.ASSOCIATES, INC., Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Theodore L. Sendak, Atty. Gen. of Indiana, William D. Bucher, David Kreider, Deputy Attys. Gen., Indianapolis, for appellant.
Dean E. Richards, Indianapolis, for appellee.
STATEMENT OF THE CASE AND FACTS--Plaintiff-appellee, W-W Associates, Inc. (W-W), sought and obtained from the trial court a final Order of Mandate against defendant-appellant, Indiana Alcoholic Beverage Commission (ABC), prior to the expiration of 20 days from the date of service of the complaint on the Attorney General, and this appeal resulted.
The record discloses this sequence of events:
November 17, 1971: W-W filed their Complaint for Mandate in the Superior Court No. 6, and the court issued an 'Order to Show Cause and Temporary Order of Mandamus' directing the the ABC to appear before the court on November 22, 1971.
November 18, 1971: Complaint and summons served on ABC.
November 22, 1971: Complaint and Summons served on the Attorney General. The court held a hearing on the Complaint for Mandate.
November 29, 1971: The court issued its Order granting mandate.
December 1, 1971: W-W filed its Petition to Show Cause why the ABC should not be held in contempt of court and the court entered a Decree ordering the ABC to appear on December 3, to show cause why W-W's Petition for Contempt should not be granted.
December 3, 1971: ABC appeared by counsel and filed its first pleadings in the case, which included a response to the Petition of Contempt.
December 13, 1971: ABC filed its Answer, Motion to Correct Errors and Petition for Stay of Order, both of which were then and there overruled.
ISSUE--Does trial court commit reversible error by entering a final Order of Mandate and entertaining contempt proceedings prior to the expiration of the 20 day time period within which a defendant (ABC) is allowed to file a responsive pleading pursuant to Rules TR. 6(C) and 12(B) IC 1971, 34--5--1--1?
ABC contends that the final Order of Mandate entered on November 29, 1971 deprived it of an opportunity to be heard because a final Order was entered before the expiration of the time within which a party has to file responsive pleadings as provided by the Rules of Procedure.
W-W has not favored us with a brief and therefore brings itself within the rule that the appellant need only demonstrate prima facie reversible error. DuFour v. DuFour, (Ind.App.1971) 273 N.E.2d 102.
DECISION--We conclude that it is reversible error for a trial court to enter a final Order of Mandate prior to the expiration of the 20-day time period within which the defendant is allowed to file a responsive pleading pursuant to Rules TR. 6(C) and 12(B).
Shakespeare characterized brevity as the soul of wit, and while we find no humor in entering judgment against ABC before its time limit had lapsed within which to answer, we can be brief.
Dispositive of the single issue in this appeal are two Rules of Procedure and one Indiana Statute:
Rule TR. 4.6(A)(3) says:
'(A) Persons to be served. Service upon an organization may be made as follows:
(3) in the case of a state governmental orgnization upon the executive officer thereof and also upon the Attorney General.' (Emphasis supplied.)
IC 1971 4--6--4--1, Ind.Ann.Stat. § 49--1937 (Burns Supp.1971) says:
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...of the orders, it did not affect the trial court's jurisdiction to issue such orders. Compare Indiana Alcoholic Beverage Commission v. W-W Associates, Inc. (1972), Ind.App., 284 N.E.2d 534 (held on direct appeal that the trial judge erred in issuing Order of Mandate prior to end of period f......
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...to make an intelligent. The briefs fail "in this regard."); Indiana Alcoholic Beverage Commission v. W-W-Associates, Inc., 152 Ind. App. 622, 284 N.E.2d 534, 536 (1972) ("and while we find no humor in entering judgment against ABC before its time limit bad lapsed within which to answer, we ......