Michigan Mut. Liability Co. v. Perez

• Decision Date: 26 May 1965
• Docket Number: No. 2,No. 20000,20000,2
• Citation: 137 Ind.App. 247,207 N.E.2d 368
• Parties: MICHIGAN MUTUAL LIABILITY COMPANY, Appellant, v. Francisca PEREZ, George Smallidge, Harold Gray, Appellees
• Court: Indiana Appellate Court

Page 368

207 N.E.2d 368

137 Ind.App. 247

MICHIGAN MUTUAL LIABILITY COMPANY, Appellant, v. Francisca PEREZ, George Smallidge, Harold Gray, Appellees.

No. 20000.

Appellate Court of Indiana, Division No. 2.

May 26, 1965.

[137 INDAPP 248] William E. Mills, R. Kent Rowe, South Bend, Edwin L. Robinson, Morocco, Mills & Rowe, South Bend, of counsel, for appellant.

Chudom & Chudom, Gary, for Francisca Perez.

BIERLY, Chief Justice.

This was an action instituted by appellee, Francisca Perez, for proceedings supplementary to execution joining appellant, Michigan Mutual Liability Company, as a supplemental defendant to recover the amount of a purported judgment rendered against appellees, George Smallidge and Harold Gray.

[137 INDAPP 249] The issues were formed by the appellee, Francisca Perez, filing a complaint which alleged that appellant, Michigan Mutual Liability Company, had issued an insurance policy to the Miller Transportation, Inc. which inured for the benefit of appellees, Harold Gray and George Smallidge, against whom the appellee had purportedly procured a judgment, to which complaint appellant filed an answer in abatement which was subjected to a motion to strike, and said motion was sustained by the court. Appellant thence filed a demurrer to the complaint which was overruled.

The judgment upon which this action was instituted was a default judgment entered December 1, 1959 against appellees, Smallidge and Gray, in the Lake Superior Court, Room 4, a certified copy of which, omitting formal parts, reads as follows: (Exhibit I.)

'Comes now the plaintiff by attorney M. C. Chudom, and shows service of summons by the Sheriff of Lake County, Indiana, on the defendant, George Smallidge, by reading and leaving a true copy thereof at defendant's last and usual place of residence on the 29th day of October, 1959; and on the defendant, Harold Gray, by leaving a true copy thereof on the 30th day of October, 1959, which was more than ten days prior to the 30th day of November, 1959, the return day herein as fixed by endorsement in writing on plaintiff's complaint, which summons together with the Sheriff's return endorsed thereon, reads as follows (insert).

'The defendants and each of them failing to appear or answer herein, are three times audibly called in open court, comes not, but herein wholly makes default. Said plaintiff also files affidavit concerning military service of the defendants, which affidavits are in these words (insert).

'This cause is thereupon submitted to court for hearing and trial, without the intervention of a jury, and the court having heard all of the evidence and being duly advised in the premises, now [137 INDAPP 250] finds for the plaintiff for the sum of $15,000.00 damages, together with all costs herein.

'IT IS THEREFORE CONSIDERED, ADJUDGED AND DECREED by the court that the plaintiff recover of and from the defendants, Harold Gray and George Smallidge, the said sum of $15,000.00 damages, together with all costs herein.

Signed:

ANTHONY B. ROSZKOWSKI

Judge--Lake Superior Court'

Said certified copy was admitted into evidence as plaintiff's-appellee's Exhibit No. 1 in the case at bar, over the objection of supplemental defendant-appellant, which objection reads as follows:

'MR. ROBINSON: Your Honor, with respect to Plaintiff's Exhibit No. 1 which is a certified copy of a judgment of the Lake Superior Court against the defendants Harold Gray and George Smallidge, which was entered on December 1, 1959, the Miller--or the Michigan Mutual Liability Company objects to that for the reason that on November 20th of 1959, the defendant Miller Transportation Company appeared by its attorney William E. Mills and filed a motion for a change of venue from Lake County, and therefore after this motion for a change of venue was filed in this cause of action the Lake Superior Court was divested of all jurisdiction and had no authority or jurisdiction to enter any purported judgment after November 20, 1959 against any of the defendants. And we do have authority upon that, if the court would like to see it.'

Plaintiff's appellee's Exhibit No. 2 purports to be an execution issued by the Clerk to the Sheriff of Lake County, Indiana, for service on defendants, Harold Gray and George Smallidge, appellees, on May 24, 1960, and the return of the writ by the Sheriff on August 31, 1960 was shown as unsatisfied. This plaintiff's appellee's Exhibit No. 2 was admitted in the evidence [137 INDAPP 251] in the case at bar over the objection by the supplemental defendant (appellant) in these words:

'MR. ROBINSON: With respect to Plaintiff's Exhibit No. 2, which is the return of the Sheriff of Lake County on the execution as against Harold Gray and George Smallidge, we make the same objection, your Honor, that the Court on December 1, 1959, at the time the purported judgment was executed, had no jurisdiction of any kind since prior thereto an affidavit had been filed for a change of venue from this cause of action--from Lake County.'

Trial was to the court which found for appellee, Francisca Perez, and who thence entered, on July 12, 1962, an order and judgment as follows:

'The Court having had this matter under advisement now finds for plaintiff. Judgment and order for plaintiff in the Proceedings Supplementary:

'The Court having heretofore heard the evidence in this cause and being duly advised in the premises, now finds that the allegations of plaintiff's complaint in proceedings supplementary to execution herein are true, and that the relief prayed for therein should be granted.

'The Court finds that the supplemental defendant, Michigan Mutual Liability Company, is in possession of the sum of $15,000.00, together with interest at the rate of 6% per annum in the sum of $2,557.37, and the costs of this action, and that said moneys are the property of the defendants, Harold Gray and George Smallidge, and that said sums are to be applied to the satisfaction of the judgment of plaintiff, Francisca Perez, rendered in the Lake Superior Court, Room 4, on December 1, 1959, in Cause No. 459-1584, entitled Francisca Perez v. Harold Gray and George Smallidge.

'IT IS, THEREFORE, ORDERED that the supplemental defendant, Michigan Mutual Liability Company, shall deliver to the Clerk of the Lake Superior Court of Indiana, or to the Sheriff of Lake County, Indiana the sum of $15,000.00 and [137 INDAPP 252] costs, with interest at the rate of 6% per annum from December 1, 1959, for the satisfaction of plaintiff's said judgment, within 15 days from date hereof; and upon the failure of supplemental defendant, Michigan Mutual Liability Company to comply with this order, judgment against said supplemental defendant, Michigan Mutual Liability Company, in the sum of $15,000.00, together with accrued interest at the rate of 6% per annum, and costs of this action be entered.'

Appellant in due course filed its motion for new trial, which was subsequently overruled, and on the 31st day of January, 1963, the trial court entered its supplemental judgment as follows:

'It having made to appear to the court that the court's order of July 12, 1962, states, 'And upon the failure of supplemental defendant, Michigan Mutual Liability Company to comply with this order, judgment against said supplemental defendant, Michigan Mutual Liability Company, in the sum of $15,000.00, together with accrued interest at the rate of 6% per annum, and costs of this action be entered.'

'IT IS, THEREFORE, CONSIDERED, ADJUDGED AND DECREED, the court having overruled the motion for new trial in this matter, that the plaintiff do have and recover against the supplemental defendant the sum of Fifteen Thousand ($15,000.00) Dollars and costs with interest at the rate of 6% per annum from December 1, 1959.'

Appellant appeals to this court and assigns as error the overruling of its motion for new trial.

The judgment upon which this action was instituted was a default judgment entered against appellees, Smallidge and Gray, in the Lake Superior Court, Room 4. Appellant argues that this judgment is null and void and of no legal effect as a motion for change of venue from the county was filed by defendant,[137 INDAPP 253] Miller Transportation, Inc., and this judgment was entered at a time when the Lake Superior Court was divested of jurisdiction to enter the judgment.

The appellee contends that while it is generally true that upon the filing of an affidavit for a change of venue from the county, the court in which said case is pending is divested of jurisdiction, a complete hiatus in jurisdiction doesn't occur during the interim while the cause is being transferred, particularly as to emergency matters. Further, appellee argues that jurisdiction sufficient to protect the parties remains in the transmitting court; and...