Meyer v. Anderson Banking Co., 30033

• Decision Date: 30 October 1961
• Docket Number: No. 30033,30033
• Citation: 177 N.E.2d 662,243 Ind. 145
• Parties: Michael MEYER, Jr., Appellant, v. ANDERSON BANKING COMPANY, Administrator of the Estate of Mary Meyer, Deceased, William Meyer, Appellees.
• Court: Indiana Supreme Court

Page 662

177 N.E.2d 662

243 Ind. 145

Michael MEYER, Jr., Appellant, v. ANDERSON BANKING COMPANY, Administrator of the Estate of

Mary Meyer, Deceased, William Meyer, Appellees.

No. 30033.

Supreme Court of Indiana.

Oct. 30, 1961.

Schrenker & Anderson, Anderson, for appellant; Paul E. Schrenker, William J. Norton, Anderson, of counsel.

Wayne O. Wimmer, Elwood, De Armond, Booram & De Armond, Anderson, for appellee; Lawrence Booram, Anderson, of counsel.

JACKSON, Judge.

This appeal comes to us by order of the Appellate Court pursuant to Acts 1901, ch. 247, § 13, p. 565, being § 4-217 Burns' 1946 Replacement.

Michael Meyer, Jr., was duly appointed and qualified as the co-administrator of the estate of Mary Meyer, deceased, on the 19th day of March, 1956, in the Superior Court of Madison County, Indiana, and continued to act as such co-administrator until the 27th day of June, 1957, on which date the special judge of the Superior Court, on his own motion, removed Michael Meyer, Jr., and William Meyer as co-administrators of said estate, ordering them to file their final report within 30 days and appointed the Anderson Banking Company as successor administrator. The Anderson Banking Company accepted the appointment and letters of administration were issued to it. The court's action was based upon its finding that an emergency existed for removal of the co-administrators, and was taken without notice, hearing or citation.

Upon learning of said order of removal, Michael Meyer, Jr., on the 16th day of July, 1957, filed his motion to set aside the order removing him as administrator. Such motion was overruled by the trial court.

The issue presented here is whether or not an emergency existed upon which the special Judge of the Superior Court could, upon his own motion, without a citation, petition, notice or hearing remove the said Michael Meyer, Jr., as co-administrator of the estate of Mary Meyer, deceased. Appellant's assignment of error, in pertinent part, reads as follows, to-wit:

'1. The Court erred in entering the order and judgment of June 27, 1957, removing this Appellant as co-administrator of the Estate of Mary Meyer, Deceased, without a citation and without an emergency existing.'

The record discloses that on the 21st day of June, 1957, Michael Meyer, Jr., and others filed a motion for a change of venue from the Judge.

Objections of Tillie Leisure, et al., were filed to the motion for change of venue, which in view of the issue before us we set out in detail.

'Comes now Tillie Leisure, Carrie Ertel, and Anna Cochran, each of whom is an interested person in this estate being administered upon, and now make and file the following objections to the separate motion by Michael Meyer, Jr., personally and as alleged co-administrator, Gus Meyer and George Meyer, for a change of judge from the Honorable Robert T. Caine on the following grounds:

'1. The applicants for the change of judge did not cause a copy of such motion to be served upon the opposing counsel as required by Rule 1-12 of the Indiana Supreme Court.

'2. The applicants' motion seeks to grant a change of judge in the administration of the estate rather than in an adversary proceedings as contemplated by Section 2-1403 Burns Statutes 1946 Replacement.

'3. The Honorable Robert T. Caine, special Judge, was selected as special judge by an agreement of all the parties, including the applicants for a change of judge, and there is no showing in the affidavit that they did not know of any bias or prejudice at the time of his selection; nor does such motion specifically allege when the cause of bias and prejudice was first discovered, how it was discovered, the fact showing the cause for a change, and why such cause could not have been discovered before by the exercise of due diligence, as required by Rule 1-12B of the Indiana Supreme Court. The failure of the applicants to comply with Rule 1-12B denies these parties, and other interested persons, the right to file counter-affidavits on such issue within ten (10) days as granted by said rule.

'4. The motion for a change of judge was filed after the Honorable Robert T. Caine, special judge, had indicated in open court that Michael Meyer, Jr., and William Meyer would each be removed and an administrator de bonis non, having no interest in the estate, would be appointed in their stead.

'5. A change of judge at this point in the administration would be contrary to the best interests of such estate, and to the public interest because: The Honorable Robert T. Caine since his selection and appointment, is now familiar with the prior proceedings, and the matters and things necessary to perform in carrying out the ministerial and judicial acts to close said estate, as expeditious as possible, and the selection of another special judge would only result in further delay until such person had acquainted himself with all the matters now known to the said Honorable Robert T. Caine. Such motion and affidavit is merely filed for vexation, hinderance and delay.

'Wherefore, Tillie Leisure, Carrie Ertel and Anna Cochran separately pray that the motion for a change of judge, heretofore filed by the said Michael Meyer, Jr., Gus Meyer and George Meyer on the 21st day of June, 1957, should be in all things overruled.'

To the motion for change of venue and the objections thereto the court entered the following order:

'Come now the parties and this cause being before the Court for hearing, the...