Snider v. Lewis, 171A21

• Decision Date: 23 November 1971
• Docket Number: No. 1,No. 171A21,171A21,1
• Parties: Carl SNIDER et al., Defendants-Appellants, v. George LEWIS, Plaintiff-Appellee
• Court: Indiana Appellate Court

Page 160

276 N.E.2d 160

150 Ind.App. 30

Carl SNIDER et al., Defendants-Appellants, v. George LEWIS, Plaintiff-Appellee.

No. 171A21.

Appellate Court of Indiana, Division No. 1.

Nov. 23, 1971.

Rehearing Denied Jan. 3, 1972.

John E. Eisele, Anderson, for appellants.

H. Harold Soshnick, Charles T. Bate, Shelbyville, Keith C. Reese, Indianapolis, for appellee; Soshnick & Bate, Shelbyville, Rocap, Rocap, Reese & Young, Indianapolis, of counsel.

LOWDERMILK, Judge.

Mr. John E. Eisele, counsel for the defendants-appellants in this cause, did not participate in this action in any way until after the trial of the cause. He prepared defendants-appellants' brief and argued the same before this court.

On April 1, 1968, the defendants-appellants in this cause brought an action against the plaintiff-appellee, George Lewis, and twenty-six other defendants in the United States District Court, Southern District of Indiana, under Cause No. IP--68--C--127. This suit alleged that all defendants therein conspired to finance and build a new junior-senior high school in Hancock County, Indiana, conspired to create an illegal school building corporation, conspired to obtain school building certificates by fraudulent means, conspired to deny access to school records, conspired to the throwing of garbage and explosives, and finally, conspired in preventing the plaintiffs in Cause No. IP--68--C--127 in the United States District Court, Southern District of Indiana, to remonstrate against said school and holding company method of financing with threat of reprisals.

On October 10, 1968, the Honorable William E. Steckler, Judge of the United States District Court for the Southern District of Indiana, in which appellants' suit was pending, rendered a judgment in favor of the defendants and dismissed the action without prejudice, and entered the following record and judgment, to-wit:

'Come now the defendants by their respective counsel pursuant to the Court's order of September 11, 1968, for oral argument on all pending motions, but the plaintiffs fail to appear in person or by counsel.

'The Court hears from counsel for the defendants as to the status of the case and also hears oral arguments on the various pending motions addressed to the insufficiency of the plaintiffs' complaint.

'Counsel for the plaintiffs arrives in the courtroom after the Court has heard the arguments of the attorneys for the defendants and states in open court that the original complaint as filed is insufficient.

'After considering the various motions addressed to the insufficiency of the complaint, the briefs in support of the motions, with no response being filed by the plaintiffs as ordered by the Court on September 11, 1968, hearing arguments of the attorneys for the defendants, and hearing the statement of counsel for the plaintiffs, the Court now finds that:

'1. The defendants' motions to dismiss are well taken and the action should be dismissed.

'2. The Court, in view of its working conditions, should dismiss the action for failure of counsel for plaintiffs to respond to the defendants' motions as required by order of September 11, 1968.

'IT IS THEREFORE ORDERED that the action be dismissed without prejudice, costs taxed against plaintiffs.'

Afterward, on December 12, 1968, George Lewis filed, in the Hancock Circuit Court, his lawsuit against the appellants for malicious prosecution. In appellee Lewis's complaint he alleged that his reputation in the area and community of Greenfield, Indiana, as well as his reputation as a lawyer and judge of the Hancock Superior Court, had been damaged, and that the appellants maliciously and without probable cause brought an action against him in the United States District Court, Southern District of Indiana. In this complaint appellee further alleged that the United States District Court case brought by the defendants-appellants against him was dismissed by the court without prejudice on October 10, 1968. The prayer of the complaint asked for relief of $15,000 compensatory damages and $75,000 punitive damages.

In the lawsuit brought by the appellee against appellants in the Hancock Circuit Court, the Honorable George B. Davis, the duly elected judge thereof, disqualified himself and the Honorable Carl T. Smith, Judge of the Madison Circuit Court, was named special judge on January 2, 1969, and qualified and assumed jurisdiction of the cause on January 3, 1969; Judge Smith ruled the defendants to answer plaintiff's complaint within fifteen days from the date of his order. The defendants, in response thereto, filed a motion for extension of time within which to plead, which motion the special judge sustained and at that time ordered the defendants to plead by March 4, 1969, or suffer default. On March 10, 1969, the special judge defaulted the defendants and set March 29, 1969, as the date for proof as to damages.

On April 15, 1969, the defendants-appellants filed their motion to vacate and set aside the default rendered against them and also filed a motion for change of venue, which combined motions are as follows:

'1. That on Friday, March 7, 1969, counsel for defendants mailed to the Clerk of this Court the defendants' Motion for Change of Venue, Answer and Request for Jury Trial, and on the same date counsel mailed copies of said pleadings to Keith C. Reese, attorney for plaintiff, who acknowledged receipt of said pleadings on the morning of March 8, 1969, at his office in Indianapolis, Indiana.

'2. That said pleadings were not received by the Clerk of this Court until the morning of March 10, 1969.

'3. That when said pleadings were received the Clerk did not file mark them but placed them in a mailing envelope addressed to Carl T. Smith, Special Judge herein at his Anderson, Indiana business office. That said envelope remained in the Clerk's office during most of the day of March 10 until the outgoing mail was delivered to the U.S. Postal authorities sometime in the late afternoon of said day.

'4. That the Clerk, in not file marking said pleadings upon arrival in her office, was following the instructions of the Circuit Court and the general prevailing custom in all cases wherein special judges had assumed jurisdiction.

'5. That said pleadings were not shown as received or entered upon any docket by the Clerk, all in pursuance with her instructions and the prevailing custom.

'6. That the delivery of said pleadings to the Clerk on the morning of March 10, 1969, and her subsequent disposition and mailing thereof are shown by the attached affidavits which are hereby incorporated and made a part hereof.

'7. That after the Clerk placed the said pleadings in a postal envelope addressed to Judge Smith and while they remained in her office as aforesaid, Judge Smith arrived at the Hancock Circuit Court and proceeded to enter said default against these defendants.

'8. That the Clerk of this Court was not aware of Judge Smith's presence and did not deliver said pleadings to him.

'9. That at the time said default was entered Judge Smith did not know the said pleadings had been received by the Clerk, all as stated herein.

'10. That Judge Smith received said pleadings on the morning of March 11, 1969, at his office in Anderson, Indiana.

'11. That said Court did not have jurisdiction to enter the default judgment on March 10, 1969, for the reason that the Motion for Change of Venue had been received by the Clerk prior to the entry of said default, thereby divesting this Court of all jurisdiction in the matter other than to grant the change of venue.

'WHEREFORE, defendants pray that the default judgment be vacated and that the Motion for Change of Venue be granted.'

(Affidavits attached of Earl Kingery, Superintendent of Mails at Greenfield, Indiana, and of Patricia Elmore, Clerk of Hancock County.)

Afterward, on May 9, 1969, plaintiff-appellee filed his demurrer before the Honorable Carl T. Smith, Special Judge, and the same was set for oral argument on May 17, 1969, at 9:30 A.M.

And afterward, to-wit, May 14, 1969, the Honorable Carl T. Smith, Special Judge, entered his order removing the cause from the calendar on May 17th and re-set the same for May 24th at 9:30 A.M. for argument on the demurrer.

And then, on May 24, 1969, before the Honorable Carl T. Smith, Special Judge, argument was had on the demurrer and on defendants' motion to vacate and set aside default and also on the motion to grant change of venue. The entire matter was taken under advisement and the court found on said date that defendants' brief in support of motion was presented and should be shown filed on April 15, 1969.

On August 25, 1969, the Honorable Carl T. Smith, Special Judge, made the following finding:

'The Court finds the defendants forwarded to the Clerk of this Court and the Clerk of said county received for filing March 10, 1969, the following: Answer of defendants in Two Paragraphs, Motion for Change of Venue from County. Henry, Rush, Shelby, Marion, Hamilton and Madison Counties are now named to a panel from which to strike. The parties are ordered to proceed with the striking according to law.'

It must be noted that Special Judge Smith ruled on neither appellee Lewis' demurrer nor on defendants-appellants' motion to vacate and set aside the judgment.

On September 2, 1969, the parties struck counties, Shelby County remained, and the cause was ordered changed to Shelby County and ten days granted to perfect the change.

On the morning of March 10, 1969, when the Special Judge defaulted the defendants herein the Clerk of the Hancock Circuit Court received in the United States mail, addressed to the Hancock County Clerk for filing in this cause for following papers:

Defendants' Motion for Change of Vanue;

Defendants' Answer to Plaintiff's Complaint;

Defendants' Request for Trial by Jury.

Said Clerk stated that she did not endorse the date upon the foregoing pleadings, but instead, and within one hour after receiving them,...