Smith v. Indiana State Bd. of Health, 1--573A78

• Decision Date: 07 November 1973
• Docket Number: No. 1--573A78,1--573A78
• Citation: 158 Ind.App. 445,303 N.E.2d 50
• Parties: Robert Alexander SMITH, a/k/a Robert Smith Alexander et al., Defendants-Appellants, v. INDIANA STATE BOARD OF HEALTH et al., Plaintiffs-Appellees.
• Court: Indiana Appellate Court

Page 50

303 N.E.2d 50

158 Ind.App. 445

Robert Alexander SMITH, a/k/a Robert Smith Alexander et al Defendants-Appellants, v. INDIANA STATE BOARD OF HEALTH et al., Plaintiffs-Appellees.

No. 1--573A78.

Court of Appeals of Indiana, First District.

Nov. 7, 1973.

Rehearing Denied Dec. 14, 1973.

John D. Clouse, Evansville, for defendants-appellants.

Theodore L. Sendak, Atty. Gen., Robert F. Hassett, Deputy Atty. Gen., Indianapolis, for plaintiffs-appellees.

LOWDERMILK, Judge.

Plaintiffs-Appellees commenced this action on August 29, 1972, by filing a complaint for injunction in the Posey Circuit Court seeking to enjoin the defendants-appellants from holding a 'rock festival' ('Labor Day celebration') in Posey County, Indiana.

On the same day, defendants-appellants filed a motion for change of judge from the Honorable Steve C. Bach, Judge of the Posey Circuit Court, which motion was granted. Later that day, plaintiffs presented a petition for a temporary restraining order to Judge Bach which was granted over the objections of the defendants-appellants.

The restraining order basically enjoined the defendants from advertising, promoting, conducting, selling or giving tickets, operating food and/or drink concessions at the Labor Day celebration and restrained the defendants from in any way holding the rock festival in Posey County, Indiana.

Judge William D. Richardson was selected and qualified as Special Judge. On September 1, 1972, plaintiffs filed the first of two informations for contempt, which information alleged that the defendants were in violation of the restraining order. The trial court issued a rule to show cause to be defendants and set the same for hearing at 9:00 o'clock A.M. on September 2, 1972.

Hearing was had on the date specified over defendants' objections and the court made findings and rendered judgment holding defendants in contempt.

Thereafter, defendants-appellants filed their affidavit for remission of a fine of $1,000 which had been assessed against them after hearing of the first citation for contempt and the relief requested was by the court denied.

On September 6, 1972, plaintiffs filed a second information for contempt, whereupon the trial court issued the second rule to the defendants to show cause and set the same for hearing on September 8, 1972. Defendants filed verified answer to the second information and the hearing was had.

On October 13, 1972, the court entered findings and judgment holding the defendants in (1) criminal and (2) civil contempt. A second affidavit for remission of fine was filed by the defendants after the court had ordered the fine paid or the defendants sent to jail, which affidavit was overruled and denied by the court.

Motions to correct errors were timely filed on the first and second contempt convictions and were overruled by the court. This is a consolidated appeal from the overruling of the two motions to correct errors.

The motions to correct errors will be discussed herein as the various specifications apply to the issues raised at the two contempt hearings, and specifications which tend to support the same issue will be treated as one. Rule AP. 8.3(A)(7).

The first issue is common to both hearings and attacks the very basis of the cause. Defendants-appellants contend that Judge Bach, having granted the motion for change of judge, lost all jurisdiction in the cause and acted beyond the scope of his authority when he granted the temporary restraining order. Appellants argue that if Judge Bach erroneously granted the restraining order, the resulting contempt convictions necessarily must be reversed, as no contempt can ensue from an invalid restraining order.

We have found no case exactly on point regarding a change of judge, but cases regarding change of venue from the county are similar and the same reasoning would apply to both changes from the county and from the judge. Our Supreme Court, in the case of Indianapolis Dairymen's Co-op. v. Bottema (1948), 226 Ind. 260, 265, 266, 79 N.E.2d 409, 411, 412, in which a temporary injunction was issued and a similar objection was raised, based on lack of jurisdiction, held as follows:

'. . . It is the general rule that when a proper motion for change of venue from the county is filed the court in which it was filed loses jurisdiction in the case. State ex rel. Kealing v. Clay Circuit Court (1934), 207 Ind. 259, 263, 192 N.E. 423. But jurisdiction must continue in some court, and until the court to which the venue was changed acquires jurisdiction by the receipt of transcript, the original court must retain jurisdiction to make any necessary emergency interlocutory orders. . . .

'. . . Delay pending the completion of a change of venue might in many instances deprive parties of the protection afforded by such interlocutory remedies. The rule that the filing of an affidavit for a change of venue from the county does not deprive the court of jurisdiction to make such interlocutory orders is well settled, and no indication of a recession from this rule is pointed out. . . .' (Our emphasis.)

The policy considerations for the rule enunciated in Bottema, supra, were set out in the case of State ex rel. Gwin v. Spencer, Judge (1942), 220 Ind. 337, 339, 43 N.E.2d 724, as follows:

'. . . Jurisdiction over the case must necessarily be in some court and some court must necessarily have jurisdiction over the action to make such orders as might be necessary for the protection of the rights of the parties litigant. To hold that the respondent judge in this case had no jurisdiction to make interlocutory orders in such a case would leave the parties to the action helpless until the venue had been perfected, and jurisdiction vested in the court to which it was sent. In some cases several days or possibly weeks might intervene between the date of filing the motion for a change of venue and the date upon which the case was filed in the county to which the action was venued. In the meantime, property interests might be affected seriously and the welfare of children might be neglected. We are not persuaded that such a situation should receive the endorsement of this court.'

This court held, in the case of Mich. Mut. Liab. Co. v. Perez (1965), 137 Ind.App. 247, 256, 207 N.E.2d 368, 372, that:

'When the application for a change of venue was filed by co-defendant, which is binding upon all defendants, the trial judge before whom the cause was filed lost jurisdiction except in matters of emergency and which matters need prompt determination. . . .'

Dean Harvey has discussed this question and concluded that:

'No change of venue may be taken from such interlocutory proceedings such as hearings upon a preliminary injunction or the granting of a temporary restraining order, and if a change is taken upon the principal action, the judge in which the case is filed may grant a preliminary injunction or temporary restraining order up until the new judge qualifies. . . .' (Our emphasis.)

4 Indiana Practice 389, Injunctions, § 65.

It is our opinion that jurisdiction in the cause was retained by Judge Bach for emergency matters, even though a change of judge had been granted. To hold otherwise would not only contravene sound policy considerations and ruling precedent, it would allow a defendant to file for a change of judge simply to divest the local court of emergency jurisdiction.

The next issue raised by the motions to correct errors relates primarily to the first contempt conviction. The defendants allege that the court erred when it denied a requested continuance, tried the defendants in absentia, and proceeded with the action when no rule to show cause, or any other process, had been served on the defendants.

Plaintiffs had obtained a temporary restraining order enjoining the defendants from conducting the 'rock festival' in Posey County, Indiana. The actual site for the festival was on Bull Island which is located in Illinois, but the only land access to the island is from Indiana. To control entry and collect admission fees from the estimated crowd of 60,000 persons, the defendants had set up a stand in Posey County, Indiana. This activity was a violation of the restraining order and prompted the plaintiffs to file an information alleging contempt. The information was filed about 4:30 P.M. on September 1, 1972, and the court issued a rule to show cause which incorporated said information. Although the judgment shows service, the evidence discloses that the defendants were never personally served or given notice of the scheduled hearing set for Saturday, September 2, 1972, at 9:00 A.M. and they were not present in court at that time.

Attorney Clouse, who had appeared generally on behalf of the defendants in the restraining order and continued to represent them, was notified by a representative of the Attorney General's office by telephone at about 7:00 P.M. September 1, 1972, of the filing of contempt proceedings and was told to appear at the hearing the next morning. When he arrived at the court house Attorney Clouse was presented with the information, rule to show cause, notice and order to appear, petition to designate defendant, and a petition for writ of attachment. Court convened before Attorney Clouse had an opportunity to read all of the material.

Attorney Clouse, after explaining the situation to the court, moved for a continuance on the grounds that he needed time to read the material, research the law appropriate thereto, prepare responsive pleadings, prepare a defense, and adequately represent his clients. The court overruled the motions and proceeded with a hearing on the contempt information. The defendants again moved for a continuance at the close of plaintiffs' case, but the court again overruled the motion. Thereupon, the court found the defendants in contempt, ordered them to remove the ticket booth from Posey County, and fined the defendants $1,000.00.

As a preliminary matter we must...