Marsh v. Lesh

• Decision Date: 30 April 1975
• Docket Number: No. 3--1073A138,3--1073A138
• Citation: 164 Ind.App. 67,326 N.E.2d 626
• Parties: David E. MARSH, b/n/f Nathalie L. Marsh, et al., Plaintiffs-Appellants, v. Gertrude Mary LESH, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 626

326 N.E.2d 626

164 Ind.App. 67

David E. MARSH, b/n/f Nathalie L. Marsh, et al., Plaintiffs-Appellants, v. Gertrude Mary LESH, Defendant-Appellee.

No. 3--1073A138.

Court of Appeals of Indiana, Third District.

April 30, 1975.

Francis J. Galvin, Jr., Hammond, for plaintiffs-appellants.

Steven R. Crist, Highland, for defendant-appellee; Tinkham, Beckman, Kelly & Singleton, Hammond, of counsel.

HOFFMAN, Judge.

Plaintiffs-appellants David E. Marsh, by next friend Nathalie L. Marsh (Marsh) appeal from a negative judgment in an action seeking damages for personal injuries. Such injuries resulted from a parking lot collision between David E. Marsh and defendant-appellee Gertrude M. Lesh (Lesh).

Marsh first questions the constitutionality of Ind. Rules of Procedure, Trial Rule 76, which provides that in civil cases a change of venue shall be granted upon the motion of a party or his attorney.

The instant case was originally filed in Lake County, and a change of venue was had to Porter County. The motion for such change of venue was filed by counsel for defendant-appellee Lesh and stated, in pertinent part:

'Comes now defendant, GERTRUDE MARY LESH, by her attorney, and shows the Court that the plaintiffs' attorney and her attorney have stipulated and agreed that the above-captioned matter should be venued to the Porter Circuit Court, sitting at Valparaiso, Indiana.'

The validity of this stipulation was not questioned by appellants in the trial court, in their brief on appeal, or in oral argument before this court.

Furthermore, the change of venue questioned by appellants was ordered by the Lake Superior Court on September 17, 1971. Following the transfer of the cause to Porter County, appellants appeared in the Porter Superior Court and proceeded with discovery, agreed to a dismissal as to one defendant, and agreed to a pretrial order. Thereafter, on January 30, 1973, nine days before trial, Marsh filed in the Porter Superior Court a motion to strike and expunge the order of the Lake Superior Court granting the change of venue. Such motion was overruled. The basis for the motion was the alleged unconstitutionality of Trial Rule 76, supra.

On appeal, appellants have again attempted to assert the unconstitutionality of such rule. In the case of Center Township v. The Board of Commissioners of Marion County, et al. (1887), 110 Ind. 579, 10 N.E. 291, our Supreme Court addressed a challenge to a change of venue presented on a record strikingly similar to that in the case at bar. Therein, at 583 of 110 Ind., at 292--293 of 10 N.E., the court stated:

'It is not claimed, or cannot be successfully claimed, that the court below had no jurisdiction of the subject of the matters transferred to it upon change of venue. This being so, Wright and others are estopped from claiming, and cannot be heard to claim, that the court below had no jurisdiction to hear and determine the very matters, which, as is shown by the record, were transferred to such court for further hearing and determination, after they, by their counsel, had, in open court, severally consented to such transfer thereof. When the Marion Superior Court announced, as it did, that it would transfer the maters then pending in this case to the circuit court of Tippencanoe county, and before the honorable judge of such court, if there were no objections, it became the duty of each and every party to the record, if he or they intended to challenge the jurisdiction of that court upon any ground, to state at once his or their objections to such transfer, and the reasons therefor. In such case the party cannot remain silent even, and afterwards avail himself of an objection to the jurisdiction, for his silence would preclude or estop him from asserting such objection almost, or quite, as effectively as would his consent in open court to such transfer, unless, indeed, the objection goes to the jurisdiction of the subject matter, which is not and cannot be waived.'

As demonstrated hereinabove, the record in the case at bar reflects a similar assent to the change of venue by trial counsel for the appellants, and a subsequent acquiescence in such change of venue. Appellant cannot now be heard to object to the venue of this cause. Cf: Watson v. Brady (1932), 205 Ind. 1, 185 N.E. 516.

The next issue which must be considered is whether the trial court erred in admitting certain evidence which Marsh sought to have excluded through a pretrial motion in limine. The granting of a motion in limine is an adjunct of the inherent power of trial courts to admit and exclude evidence. Burrus v. Silhavey (1973) Ind.App., 293 N.E.2d 794. It must be noted that ordinarily the denial of a motion in limine can occasion no error; the objectionable occurrence is the improper admission of items in evidence. Therefore, the standards of review applicable to questions concerning the admission of evidence must prevail in the case at bar.

In determining the propriety...