Scott v. Scott

• Decision Date: 16 July 1965
• Docket Number: No. 19935,19935
• Parties: Helen J. SCOTT, Appellant, v. Robert E. SCOTT, Appellee.
• Court: Indiana Appellate Court

Page 49

209 N.E.2d 49

140 Ind.App. 320

Helen J. SCOTT, Appellant, v. Robert E. SCOTT, Appellee.

No. 19935.

Appellate Court of Indiana, In Banc.

July 16, 1965.

[140 INDAPP 321]

Lloyd L. Dewester, Jr., Indianapolis, for appellant.

Craven & Healey, Indianapolis, for appellee.

[140 INDAPP 322] BIERLY, Chief Justice.

Appellant, Helen Scott, instituted this action in the Hendricks Circuit Court for an absolute divorce from appellee, Robert E. Scott.

Appellant's complaint for an absolute divorce was predicated upon the statutory grounds of cruel and inhuman treatment. Appellant's complaint further requested custody of the minor children, a reasonable amount of money for their support, personal property of the parties, and costs of the action. Appellee filed his answer in compliance with Rule 1-3. On the same day appellee filed a cross-complaint in which he requested an absolute divorce from appellant, asserting cruel and inhuman treatment, cusody of the minor children and all other proper relief in the premises.

The court entered its decree denying to appellant a divorce and granting appellee an absolute divorce, custody of the minor children and providing for division of the property of the parties.

Subsequent to the court's decree, the court sustained a motion by appellant to hold the proceedings in abeyance. Upon appellant's motion, the court opened the judgment on the motion for a new trial for the purpose of hearing additional testimony. Thereafter, appellant filed her motion for a change of venue from the judge, which motion was overruled by the trial court the same day it was filed. The cause was set for hearing of additional evidence. Final judgment, which contained the same findings as the initial decree, was thereafter rendered.

Appellant complains that manifest error was committed by the trial court in that:

'1. The court erred in overruling appellant's motion for new trial.

'2. The court erred in overruling appellant's motion for a change of venue from the Judge.'

[140 INDAPP 323] Appellant's motion for new trial asserts error:

'1. That irregularities occurred in the proceedings of the court by which the plaintiff was prevented from having a fair trial;

'2. Than an abuse of discretion by the court occurred during the course of the proceedings by which the plaintiff was prevented from having a fair trial;

'3. That the decision of the court is not sustained by sufficient evidence '4. That the decision of the court is contrary to law.'

The first two specifications of error under appellant's motion for a new trial are not to reviewed by this court. Specifications of error asserting irregularities in the proceedings and abuse of discretion of the court, thus vaguely stated as causes in a motion for a new trial, will not present error on appeal. It is not sufficient to allege error merely on the language of the statute; the motion must specifically set forth the error relied upon. The general language of the above two specifications of error is too general to apprise the trial court of appellant's asserted errors. For this reason this court will not review the above specifications. Ferguson v. Ramsey (1873), 41 Ind. 511; see also Flanagan, Wiltrout and Hamilton, Indiana Trial and Appellate Practice, Sec. 1812, Comment 1, Provision 1, p. 379; Ellis v. Auch et al. (1954), 124 Ind.App. 454, 118 N.E.2d 809; Sheridan v. State (1955), 125 Ind.App. 271, 124 N.E.2d 701.

However, due to the importance of the question presented by appellant's belated motion for a change of venue from the judge, we will review this question. Appellant's belated motion, omitting formal parts, is as follows:

'Comes now the plaintiff, after being duly sworn upon her oath, and respectfully moves the Court grant a change of venue from the Judge for the following reasons:

'1. That the Judge is of kin to the defendant in this cause of action;

[140 INDAPP 324] '2. That the convenience of witnesses and the ends of justice would be promoted by the change of Judge;

'3. That bias and prejudice exists on behalf of the trial Judge which makes it impossible for the plaintiff to have a fair and impartial trial.

'Affiant further states on her oath that she objects to the presiding Judge of the Hendricks Circuit Court selecting a Judge to try the case, or submitting a list of names from whom a Judge may be selected to try the case, and respectfully moves that the Court certify the facts to the Clerk of the Supreme Court of the State of Indiana as in such cases made and provided.

'Affiant further states on her oath that the reasons assigned for the Change of Venue from the Judge were newly discovered by this affiant after the commencement of this trial and the existence of these grounds for the Change of Judge were not known to the plaintiff prior to the commencement of the case in chief.

'WHEREFORE, affiant respectfully moves the Court grant the motion for Change of Judge in this case and provide for the appointment of a Special Judge as provided by the statute of the State of Indiana in in such cases made and provided.'

Acts 1881 (Spec.Sess.), ch. 38, Sec. 255, p. 240, being Sec. 2-1401, Burns' 1946 Replacement, provides in pertinent part:

'The court, in term, or the judge thereof, in vacation, shall change the venue of any civil action upon the application of either party, made upon affidavit showing one or more of the following causes:

'* * *

'Second. That the judge is of kin to either party.

'* * *

'Seventh. When either party shall make and file an affidavit of the bias, prejudice or interest of the judge before whom the said cause is pending.'

Acts 1929, ch. 6, Sec. 1, p. 12, being Sec. 2-1402, Burns' 1946 Replacement, provides:

'When any matter of a civil, statutory or equitable nature not triable by a jury, is pending, the judge before whom [140 INDAPP 325] said cause is pending shall change the venue thereof upon the application of either party to such cause, made upon affidavit, of either party or his attorney, showing any one or more of the reasons named in the statutes of this state authorizing changes of venue from the judge in civil actions. And the presiding judge shall make an appointment of a special judge to hear such cause in the manner provided by law for changes of venue in civil actions.'

The above provision has been found to be applicable to actions for divorce. McDaniels v. McDaniels (1945), 116 Ind.App. 322, 62 N.E.2d 876.

Rule 1-12B of the Rules of the Supreme Court provides, in part:

'1. In all cases where the venue of a civil action may now be changed from the judge or the county, such change shall be granted upon the filing of an unverified application or motion without specifically stating the ground therefor by a party or his attorney. Provided, however, a party shall be entitled to only one (1) change from the county and only one (1) change from the judge.

'2. In any action except criminal no change of judge or change of venue from the county shall be granted except within the time herein provided. Any such application for a change of judge or change of venue shall be filed not later than ten days after the issues are first closed on the merits.

'* * *

'8. Provided, however, if the moving party first obtains knowledge of the cause for change of venue from the county or judge after the time above limited, he may filed said application, which must be verified personally by the party himself, specifically alleging when the cause was first discovered, how it was discovered, the facts showing the cause for a change, and why such cause could not have been discovered before by the exercise of due diligence. Any opposing party shall have the right to file counter-affidavits on such issue within ten (10) days, and the ruling of the court may be reviewed only for abuse of discretion.' (Our emphasis.)

[140 INDAPP 326] It appears that a brief history of the applicable rules of the Supreme Court is necessary for an understanding of the question presented.

Rule 1-12 as adopted in 1946 provided, in part:

'* * *. An application for change of judge as now provided by law, shall be filed at least ten days before the date set for the trial, or if a date less than ten days in the future is set for the trial, the application shall be filed within two days after the setting of the case for trial * * *.'

In the case of State ex rel. Chambers v. Heil (1951), 229 Ind. 176, 96 N.E.2d 225, it was held that a general allegation of bias and prejudice and that the affidavit was filed at the first opportunity after the bias and prejudice of the judge was discovered, would suffice to relax that portion of Rule 1-12 set forth above.

Rule 1-12B as adopted in 1955 provided, in part, as follows:

'In all cases where the venue of a civil action may now be changed from the judge or the county, such change shall be granted upon the filing of an unverified application or motion therefor by a party or his attorneys; Provided, however, a party shall be entitled to only one change from the county and only one change from the judge.

In any action except criminal no change of venue from the county shall be granted except within the time herein in provided. Any such application for change of venue shall be filed within ten (10) days after the issues are first closed on the merits, or if the issues are closed without answer by operation of law, or where a cause is remanded for a new trial by the Appellate or Supreme Court, within ten (10) days after the party has knowledge the cause is ready to be set for trial. Any application for change of venue from the county to which the venue is first changed shall be filed within ten (10) days after the moving party has knowledge the cause has reached the county if the issues have already been closed as above provided.

'Provided, however, if the moving party first obtains knowledge of the cause for change after the time above limited, he may file said application, which must be verified personally by ...