Lies v. Ortho Pharmaceutical Corp.

• Decision Date: 18 July 1972
• Docket Number: No. 572S66,572S66
• Parties: Margaret R. LIES, Plaintiff, v. ORTHO PHARMACEUTICAL CORPORATION et al., Defendants.
• Court: Indiana Supreme Court

Page 792

284 N.E.2d 792

Margaret R. LIES, Plaintiff, v. ORTHO PHARMACEUTICAL CORPORATION et al., Defendants.

No. 572S66.

Supreme Court of Indiana.

July 18, 1972.

James H. Kelly, Patrick R. Taylor, Martinsville, for plaintiff.

William P. Wooden, Robert J. Shula, William F. Landers, Jr., Indianapolis, for defendants.

PRENTICE, Justice.

The plaintiff has filed a praecipe with the Clerk of Marion Superior Court, Room 1, under Trial Rule 53.1(A), IC 1971, 34--5--1--1 (formerly designated Trial Rule 53.2(A) and amended January 19, 1972). Pursuant to said praecipe, the Clerk of said court has certified to this court that a motion to correct errors in the above entitled cause was filed April 4, 1972 and that as of May 10, 1972, the date of the filing of said praecipe, the judge of said court had made no ruling upon said motion.

Under Trial Rule 1--9 then in effect and recently replaced by Trial Rule 63(A) we held in State ex rel. Harlan v. Municipal Court (1943), 221 Ind. 12, 46 N.E.2d 198, that notwithstanding the 'lazy judge' provisions of § 2--2102 Burns' Ind.Stat.Ann.1933 (since repealed and superseded) the judge who presided at the trial of the cause should rule upon the motion for a new trial. We dissolved the temporary writ of prohibition previously granted prohibiting the trial judge from proceeding further in the cause and ordered him to rule upon the motion for a new trial by a day made certain and to take other post-trial steps in conformity with the statutes and court rules. Since that date, and until the effective date of Trial Rule 53.2 on January 1, 1970 (amended and designated Trial Rule 53.1) the appropriate remedy when a trial judge failed or refused to rule upon a motion for a new trial was by writ of mandate. We acknowledge, as stated in State ex rel. Harlan (supra) and the cases therein cited, that the judge who presided at the trial is the logical and best qualified person to pass upon post-trial motions. His duty requires it, and Trial Rules 53.1(A)(3) and (4) provide for extending the time allowed in appropriate cases. When he fails or refuses to do so, however, the question becomes one of how best to overcome the handicap occasioned by his inactivity. Trial Rule 53.1 is the appropriate vehicle, notwithstanding that in rare instances it may be necessary for the replacement judge to procure a transcript of the evidence or even to grant a new trial or new hearing, in whole or in part, under Trial Rule 63(A); and we hold that Trial Rule 53.1 supersedes our holding in State ex rel. Harlan (supra).

ARTERBURN, C.J., and DeBRULER, GIVAN and HUNTER, JJ., concur.

ORDER

ARTERBURN, Chief Justice.

The Clerk of the Marion County Superior Court, having heretofore on May 10, 1972, filed its notice of withdrawal of jurisdiction under TR 53.1(A) in the above cause, showing that on April 4, 1972 the plaintiff filed a motion to correct errors and that no ruling had been entered thereon by said Court within thirty (30) days from said date as provided by said Rule 53.1(A), and there...