State ex rel. American Fletcher Nat. Bank & Trust Co. v. Lake Superior Court, Room 5, 30025

• Citation: 242 Ind. 118,175 N.E.2d 3
• Decision Date: 23 May 1961
• Docket Number: No. 30025,30025
• Parties: STATE of Indiana on the relation of AMERICAN FLETCHER NATIONAL BANK AND TRUST COMPANY, a national banking association, as Trustee of the William Bartlett Estate, Jane R. Barry and Charles R. Kinnaird, Relators, v. LAKE SUPERIOR COURT, ROOM 5, Joseph V. Stodola, Jr., as Special Judge of Lake Superior Court, Room 5, Respondents.
• Court: Indiana Supreme Court

Page 3

175 N.E.2d 3

242 Ind. 118

STATE of Indiana on the relation of AMERICAN FLETCHER NATIONAL BANK AND TRUST COMPANY, a national banking association, as Trustee of the William Bartlett Estate, Jane R. Barry and Charles R. Kinnaird, Relators, v. LAKE SUPERIOR COURT, ROOM 5, Joseph V. Stodola, Jr., as Special Judge of Lake Superior Court, Room 5, Respondents.

No. 30025.

Supreme Court of Indiana.

May 23, 1961.

Rehearing Denied June 30, 1961.

Paul B. Huebner, Hammond, C. Severin Buschmann and Donald A. Schabel, Indianapolis, for relators.

James J. Richards, Cordell C. Pinkerton and Owen W. Crumpacker, Harold Abrahamson, Hammond, James K. Northam, Indianapolis, for respondents.

ACHOR, Judge.

Relators herein seek a writ of mandate, commanding the respondents to set aside the order entered on July 25, 1960, striking the relators' supplemental complaint in Cause No. 57536, in the respondent court and to set aside the order entered on July 27, 1960, dismissing the cause on the ground of abandonment by the predecessors in interest to the relators herein.

The matter here in controversy has followed the long and devious course of litigation in the courts of this state. Therefore, an understanding of the issues here presented requires more than the usual statement of facts.

As stated in relators' petition, on October 23, 1944 Charles O. Roemmler, Fletcher Trust Company, as Trustee of the William Bartlett Estate, Carl A. Huebner and Clifford L. Etling, for and on behalf of themselves and all other persons, firms and corporations similarly situated, allegedly holding and owning improvement bonds and coupons issued by the City of Hammond, Indiana, filed an action against the City of Hammond in the Lake Superior Court, Room 5, which was docketed as Cause No. 57536. Thereafter, on February 28, 1947, an agreed judgment for the sum of $2,454.57 was entered in said action against the City of Hammond in favor of the class allegedly represented by the plaintiffs. Similar judgments were also entered in other cases in the aggregate sum of approximately $950,000.

Thereafter, on June 14, 1947, Jay E. Darlington, an attorney and taxpayer of the City of Hammond, commenced an action in the Lake Superior Court, Room 5, which was docketed as Cause No. 60850, to enjoin the City of Hammond from paying the judgment rendered in said Cause No. 57536 and other similar judgments on the ground of fraud in their procurement. The venue of the Darlington action was changed to the Porter Circuit Court. On September 7, 1948, the Porter Circuit Court filed special findings of fact and conclusions of law and rendered its decree thereon, declaring that the judgments entered by the Lake Superior Court, Room 5, including said Cause No. 57536, with which we are here concerned, were void because of fraud in their procurement and permanently enjoined the enforcement thereof.

The judgment of the Porter Circuit Court was appealed to the Appellate Court of Indiana which affirmed that portion of the decree which determined that the judgments were void, but reversed the decree of injunction as being too broad. The Appellate Court stated that under the circumstances of the case, the Porter Circuit Court, pursuant to its findings, should have returned the parties to the status quo by ordering all the judgments set aside which were determined to be void in order that they might be readjudicated on the basis of the merits of each particular case. Gilkison et al. v. Darlington, 1952, 123 Ind.App. 28, 46, 106 N.E.2d 473. [Transfer denied November 13, 1952.] See also City of Hammond v. Darlington, Ind.App.1958, 154 N.E.2d 402; City of Hammond v. Darlington, Ind.1959, 162 N.E.2d 619.

Upon remand of the cause by the Appellate Court [123 Ind.App. 28, 106 N.E.2d 473, supra], the Porter Circuit Court, on June 23, 1954, restated its conclusions of law and entered a judgment in accordance with the mandate of the Appellate Court. However, thereafter neither the plaintiffs in said Cause No. 57536, nor their successors (the relators herein) in interest or the respondent, Lake Superior Court, Room 5, took action with respect to this particular case, except as hereinafter set forth.

On March 9, 1960, the City of Hammond filed a motion in the Lake Superior Court, Room 5, to strike and dismiss said Cause No. 57536 because of abandonment by the parties-plaintiffs. The motion cites the fact that although said judgment was declared void and ordered set aside by the Appellate Court because of fraud in its procurement, no action or proceedings were had in said cause during the intervening period of six years by the purported plaintiffs or their attorneys of record or by anyone else. The motion then asserted that because of this patent abandonment of the action by the parties-plaintiffs and all other members of the alleged class, the City of Hammond was entitled to a decree dismissing said cause of action and striking it from the docket and thereby formally and finally terminating the controversy which because of the nature of the action was of great and obvious public interest. Notice of the filing of said motion was served upon Carl A. Huebner, as representative of the class and as attorney of record, pursuant to Rule 1-16 of this court. The cause was set for hearing on March 25, 1960, on which date attorney Paul B. Huebner, son of Carl A. Huebner, appeared of record in the case but no action of record was taken with respect to the requested dismissal of the cause.

Thereafter, pursuant to a change of venue from the judge, the respondent, Joseph V Stodola, Jr., was appointed special judge on April 18, 1960.

Thereafter these relators filed petitions to intervene and be substituted as parties to the cause. The cause was submitted on relators' petition to intervene and on answers and objections of the City of Hammond, and, on June 20, 1960, the respondent court entered an order denying the petitions of relators to intervene and be substituted as representative plaintiff parties in said class action. However, on that date, the court gave the relators ten days to file supplemental complaints as contemplated by Burns' Ann.St. § 2-227 (1946 Repl.), with respect to any bonds in which said parties individually held as successors in interest.

Thereafter the relators, on June 23, 1960, filed their supplemental complaint in which they alleged, generally, that they were the present owners of the Barrett Bonds of the City of Hammond, formerly owned by the Fletcher Trust Company, as Trustee of the William Bartlett estate, and by Charles O. Roemmler, deceased, which bonds were the basis of the former owners' complaint in this cause and 'adopting the complaint of the former owners (in the nature of a class action) as their own.'

On June 27, 1960, the City of Hammond filed its objections and a motion to strike the supplemental complaint. On July 7, 1960, the cause was submitted on the motion to strike the supplemental complaint and the City of Hammond's objections thereto. The court then entered an order holding that the relators were interlopers and struck their supplemental complaint from the record.

Thereafter, on July 27, 1960, the respondent court entered a finding, among other things, that a motion to dismiss and strike the cause of action, because of abandonment, had been filed in Cause No. 57536 on March 9, 1960, that notice had been served upon representatives of the class action, that no response to the motion had been filed asserting any meritorious ground or reason why the cause should not be dismissed because of the abandonment thereof by the plaintiffs and members of the alleged class. The court then, on the basis of the pleadings before it, entered an order dismissing the cause for want of prosecution and the same was accordingly stricken from the docket.

At the outset, we are confronted with two significant deficiencies in relators' petition. First, the petition is not accompanied by a certified copy of the original complaint in the Lake Superior Court upon which the primary action is based, as required by Rule 2-35 of this court. Instead, relators, in their supplemental complaint, merely stated that they 'adopt the complaint (of their predecessors in interest) as their own.'

We have held that compliance with Rule 2-35 is jurisdictional. In State ex rel. Woods, Treas. v. Knox C. C., 1954, 233 Ind. 552, 553-554, 121 N.E.2d 880, Seal, J., in dissolving an alternative writ of mandate and denying a permanent writ, this court held as follows:

'Rule 2-35 of this court requires the relator in a proceeding of this kind to set out in his petition, or to exhibit therewith, certified copies of all pleadings, orders and entries pertaining to the subject matter. This the relators have failed to do.

'The rules of this court are binding alike upon all litigants and upon this court. If equal justice is to be administered, the rule must be impartially enforced. We have consistently and repeatedly refused to issue writs of mandate or prohibition...