McClain v. Steele

• Citation: 109 N.E. 793,59 Ind.App. 657
• Decision Date: 14 October 1915
• Docket Number: No. 8664.,8664.
• Parties: McCLAIN v. STEELE.
• Court: Court of Appeals of Indiana

59 Ind.App. 657

109 N.E. 793

McCLAIN

v.STEELE.

No. 8664.

Appellate Court of Indiana, Division No. 2.

Oct. 14, 1915.

Appeal from Circuit Court, Gibson County; Herdis Clements, Judge.

Action by Charles A. Steele against Silas McClain. On denial of the motion for new trial, defendant appeals. Affirmed.

Wm. E. Henderson and Clarke & Clarke, all of Indianapolis, for appellant. James B. Gamble, of Princeton, for appellee.

MORAN, J.

The only question before the court for consideration is, Was appellant erroneously deprived of a change of venue from Gibson county where this suit was originally filed?

On April 4, 1912, appellee filed a complaint in the Gibson circuit court against appellant, to recover an indebtedness which he alleged was due him from appellant, and, to have a deed of conveyance held by him from appellant on certain real estate in Gibson county, Ind., to secure the indebtedness, declared a mortgage; that the same be foreclosed and a receiver be appointed to take charge of the real estate during the pendency of the suit. On April 14, 1912, appellee filed a second paragraph of complaint, which, as to the relief demanded, does not differ from the first paragraph, and on April 15, 1912, a receiver was appointed. On May 27, 1912, appellant answered the complaint by general denial, and on June 1, 1912, the cause was ordered referred to the probate commissioner of the Gibson circuit court for trial and finding. On June 5, 1912, the cause was recalled from the probate commissioner, and appellant filed a cross-complaint and two affirmative paragraphs of answer to the complaint. By the cross-complaint and the third paragraph of answer, appellee sought an accounting between himself and appellant; the issues were closed by an answer in one paragraph to the cross-complaint, and a reply in general denial to the affirmative paragraphs of answer, thereupon the cause was again referred to the probate commissioner. On September 13, 1912, upon application of appellant, a nunc pro tunc entry was entered of record, showing that on June 18, 1912, more than three days before the trial of said cause, appellant filed his application supported by affidavit for a change of venue from Gibson county. No ruling was had upon the application for a change of venue. On August 28, 1912, appellant through his counsel entered a special appearance before the probate commissioner, and moved to remand the cause to the Gibson circuit court, for the want of jurisdiction in the probate commissioner, by reason of there being, on file in the Gibson circuit court, an application for a change of venue from the county, which had not been ruled on. This motion was overruled, to which appellant excepted. On September 14, 1912, the probate commissioner filed his report, showing that there was due appellee from appellant $2,746.49. The report further discloses that a trial was had before the probate commissioner, including the argument of counsel, to which report appellant objected, on the grounds that the probate commissioner had no jurisdictionby reason of the application for a change of venue from the county, as aforesaid. Appellant moved for a new trial before the probate commissioner, which motion the probate commissioner refused to receive and file in the cause. On September 24, 1912, the court examined the report of the probate commissioner, and found for appellee on both paragraphs of his complaint, adopting as his findings the report of the probate commissioner, upon which judgment was rendered. On November 22, 1912, appellant filed a motion for a new trial; that part of which is...