Starr v. City of Gary
| Decision Date | 13 February 1934 |
| Docket Number | No. 25589.,25589. |
| Citation | 188 N.E. 775,206 Ind. 196 |
| Parties | STARR v. CITY OF GARY et al. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Lake County; Charles E. Greenwald, Judge.
Action by John M. Starr against the City of Gary and others. Judgment in favor of the defendants, and the plaintiff appeals.
Judgment reversed.John W. Scott and William H. Matthew, both of Gary, for appellant.
Harry Sharavsky, Greenlee, Richardson & Greenwald, and Gavit, Hall, Smith & Gavit, all of Gary, for appellees.
As stated by the appellant, this was an action by the appellant, as plaintiff below, to restrain and enjoin the city of Gary, and the appellees, who were officers of said city, from removing, attempting to remove, or from interfering with the gasoline pump, air, and water apparatus of the appellant on the curb in front of the premises of the appellant.
A temporary restraining order was issued upon the verified complaint; the restraining order was dissolved and temporary injunction denied. After the motion to dissolve the restraining order was filed, the appellant presented and offered to file an affidavit for a change of judge on account of the bias and prejudice of said judge against the plaintiff and his cause of action. The appellees, the defendants below, filed written objections to the filing of the affidavit for a change of judge for the reason that no notice was shown of the application for a change from the judge. The court sustained the objections of the appellees and proceeded to hear the motion to dissolve the restraining order and the application for a temporary injunction.
The appellant has assigned nine specifications in his assignment of errors, but for the purpose of this case we will only consider the first two, which are as follows:
(1) The court erred in refusing to allow the appellant plaintiff below, to file his affidavit for a change of judge.
(2) The court erred in refusing to sustain the motion of the appellant for a change of judge.
This court would be entirely within its technical right to refuse to consider the questions raised by the appellant for the reason that his brief does not comply with the rules of this court. In view, however, of the statements made by the attorney for the appellant and the attorney for the appellees, we have decided to pass upon the merits of the contention presented.
It is the contention of appellees that a change of judge in this cause was sought in vacation without notice, and, as there was no notice given, there was no error in denying the application.
Section 446, Burns' 1926, provides: “No change of venue shall be granted in vacation unless the opposite party has had ten days' notice.”
The verified complaint in this action was filed on March 3, 1928, asking for a restraining order which was granted, and the court fixed March 6, 1928, as the time for hearing the application for a temporary injunction. The appellees on March 6, 1928, filed their motion to dissolve the restraining order, and the appellant on the same day tendered and offered to file his affidavit for a change of judge. On March 7, 1928, the appellee filed written objections to the filing of the affidavit for a change of judge which was sustained by the court.
It is seen from the record that only five days, March 3, to March 7, 1928, intervened from the time the complaint was filed until the court refused the plaintiff the right to file his affidavit for a change of judge, and the case had been set for March 6, 1928, to hear the application for a temporary injunction.
The January term of the Lake superior court commenced on the second Monday of January and continued for a period of eight weeks, ending Saturday, March 3, 1928, and the March term began on the second Monday of March (March 12, 1928) 1928.
It is manifest that, under the situation as presented, it was impossible for the appellant to give ten days' notice as provided for by the statute. Does this fact take away the right of the appellant for a change of judge? We think not.
It appears from the record that the court set the hearing for a temporary injunction for March 6, 1928; that notice was given defendants and they appeared in court on said day and filed their motion to dissolve the restraining order; that the appellant tendered and offered to file his affidavit for a change of judge, and on March 7, 1928, the appellees appeared and objected to the filing of the affidavit for a change of judge. At every step taken the appellees were in court contesting the right of appellants.
In such an action as before us, we do not believe that section 446 is applicable and controlling, and in the very nature of the facts cannot be.
Section 446, Burns' 1926, must be considered and...
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