Indiana Suburban Sewers, Inc. v. American Fletcher Nat. Bank & Trust Co.

• Decision Date: 20 February 1974
• Docket Number: No. 873S154,873S154
• Citation: 261 Ind. 544,307 N.E.2d 455
• Parties: INDIANA SUBURBAN SEWERS, INC., and Suburban Services, Inc., Defendants Below, v. AMERICAN FLETCHER NATIONAL BANK AND TRUST COMPANY, Plaintiff Below, and John Dehner, Inc., Defendant Below.
• Court: Indiana Supreme Court

Page 455

307 N.E.2d 455

261 Ind. 544

INDIANA SUBURBAN SEWERS, INC., and Suburban Services, Inc. Defendants Below, v. AMERICAN FLETCHER NATIONAL BANK AND TRUST COMPANY, Plaintiff Below and John Dehner, Inc., Defendant Below.

No. 873S154.

Supreme Court of Indiana.

Feb. 20, 1974.

HUNTER, Acting Chief Justice.

On August 2, 1973, the defendants in the above-entitled cause, filed with the Clerk of the Allen Circuit Court a 'Praecipe To Clerk To Forthwith Give Notice, Pursuant To Rule TR 53.1(B).' The Clerk of the Allen Circuit Court in turn gave the following notice to Mr. Billie R. McCullough, Clerk of the Supreme Court and Court of Appeals, Gene B. Lee, Special Judge, Allen Superior Court, and Alfred W. Moellering, Judge Allen Superior Court:

'You are hereby given written notice by me, the Clerk of the Allen Circuit Court, that on August 2, 1973, at 2:35 o'clock P.M., Eastern Standard Time, as duly entered in the praecipe book and as herein endorsed, defendants in the above-entitled cause, Indiana Suburban Sewers, Inc. and Suburban Services, Inc. filed with me, as Clerk, their 'PRAECIPE TO CLERK TO FORTHWITH GIVE NOTICE, PURSUANT TO RULE TR 53.1(B)', which set forth as borne out by the record, that the judge before whom the above entitled cause is pending, has failed to enter a ruling on said defendants' Rule TR 60(B) Motion within thirty (30) days after said Motion was filed on February 8, 1973, and that the submission of said Motion is withdrawn and that said judge is disqualified in said cause, effective as of said time and date of filing said praecipe.'

We believe that this notice was prematurely filed, and we view it as a tactical circumvention of Indiana appellate procedure.

This Court decided the original action case of State ex rel. Indiana Suburban Sewers et al., relators v. Hanson, Clerk of the Allen Circuit Court, respondent, on May 30, 1973, 296 N.E.2d 660. A petition for rehearing was filed by defendants and denied on September 25, 1973.

The above notice provided by the Clerk of the Allen Circuit Court is in relation to Allen Superior Court cause number S--72--1482, which is the same case decided by this Court on May 30, 1973. The notice, issued by the Clerk of the Allen Circuit Court, had no validity during the pendency of the petition for rehearing. During that period of time, the Allen Superior Court's jurisdiction was held in abeyance. Judge Lee, the Special Judge in the case, could not have acted on the TR 60(B), IC 1971, 34--5--1--1, motion, because the issue of his jurisdiction to so act was still pending before this Court.

Notwithstanding the above-stated procedural defect, defendant's position that the motion be removed from Judge Lee and a special judge appointed is utterly without merit. This Court in our opinion of May 30, 1973, conclusively held that Judge Lee in proceeding on defendant's TR 60(B) motion complied with all requirements of TR 53.1(B).

Defendants, on January 21, 1974, filed a petition with this Court entitled 'Affidavit in Support of Clerk's Certification of August 10, 1973.' In said petition, defendants advance the following argument:

On April 24, 1973, defendants filed a motion to strike and/or expunge a petition for a...