State ex rel. Cheeks v. Wirt

• Citation: 203 Ind. 121,177 N.E. 441
• Decision Date: 21 July 1931
• Docket Number: No. 25776.,25776.
• Parties: STATE ex rel. CHEEKS v. WIRT, Superintendent of Gary Schools, et al.
• Court: Supreme Court of Indiana

203 Ind. 121

177 N.E. 441

STATE ex rel. CHEEKS

v.WIRT, Superintendent of Gary Schools, et al.

No. 25776.

Supreme Court of Indiana.

July 21, 1931.

Appeal from Porter Circuit Court; Grant Crumpacker, Judge.

Mandamus by the State, on the relation of Alberta Cheeks, a minor, by her next friend, Richard Cheeks, against William Albert Wirt, Superintendent of Gary Schools, and the School City of Gary. Judgment for defendants, and relatrix appeals.

Affirmed.R. L. Bailey, of Indianapolis, and Edw. McKinley Bacoyn, of Gary, for appellant.

Hodges, Davis & Hodges, of Gary, for appellees.

TREANOR, J.

[1] The appellant, as next friend of the relatrix, began suit in the Lake county superior court for the purpose of mandating appellees either to reinstate relatrix in a certain named high school or to transfer and admit her “as a high school pupil in one of the accredited high schools of the *** school city of Gary, Indiana.” The initial pleading of appellant inaccurately “prays that a writ of mandamus issue” from the trial court requiring the defendants “to show cause”; but no objection was made to the form of the pleading and it will be treated on appeal as if it had been properly drawn as a complaint for mandate as required by section 1244 et seq., Burns' Ann. St. 1926, Acts 1915, c. 87, p. 207 et seq. See State ex rel. v. Cox, 193 Ind. 519, 525, 141 N. E. 225. In addition to a general denial, the defendants filed “a further and second paragraph of answer” to which the plaintiff demurred.qqqqq The case was venued to Porter county, where the cause was tried by the court without a jury. There was a finding and judgment for the defendants, and, after the overruling of a motion for a new trial, this appeal was prosecuted.

The circumstances which occasioned this suit were briefly as follows: At the opening of the public schools of Gary in September, 1927, the relatrix enrolled as a pupil of the 10B grade (second year high school) in Virginia Street school. On that date the Virginia Street school was organized to offer the eight years of elementary grade work and two years of high school work. On September 19, 1927, all tenth grade work was discontinued in the Virginia Street school and the relatrix and several other pupils, all members of the colored race, were transferred to Emerson High School. Shortly thereafter a large number of white pupils “struck at Emerson” as a protest against the presence of the relatrix and the other pupils who had been transferred from the Virginia Street school to Emerson. The school officials refused to make any changes at that time, and the strikers returned to their classes. The appellant charges that they were induced to return by the promise that the pupils to whose presence objection had been made would be taken out of Emerson High School within ninety days. On December 23, 1927, the superintendent of the Gary public schools notified the relatrix and certain other colored pupils to report for work at the Virginia Street school on January 9, 1928, the date of the opening of school after the Christmas vacation. On January 9th this action was commenced, after refusal by the school superintendent to admit relatrix to any school other than Virginia Street.

[2] Appellant's assignment of errors contains seven specifications. The first is that the trial court erred in overruling appellant's demurrer to the second paragraph of answer; the second, third, fourth, and fifth specifications are merely variations of the proposition that the court erred in overruling appellant's motion to set aside submission; and the sixth error assigned is the overruling of appellant's motion for a new trial. The seventh alleged error is not included by appellant under “Points and Authorities,” and is therefore waived.

[3][4] We shall consider first the specification that the trial court erred in overruling the demurrer to the second paragraph of answer. This paragraph is as follows: “Now comes the defendants and for further and second paragraph of answer say: That they have provided for relatrix herein and for all other children, a school with all the rights, privileges and advantages of other schools in said city of Gary.”

The complaint contains several allegations to the effect that the relatrix was being denied “equal high school educational facilities and advantages afforded the other high school students of said school city,” etc. It is apparent that the second paragraph of answer constitutes an argumentative denial of particular allegations in the complaint, although it is put into the form of an affirmative defense composed of new matter. Flying Squadron Foundation v. Crippen, 201 Ind. 482, 510, 169 N. E. 843. In discussing the Indiana practice relative to argumentative denials, Pomeroy makes the following comment: “When the answer contains the general denial and in addition thereto, a separate defense or separate defenses equivalent to the general denial-that is, mere argumentative denials as above described-such additional defenses, it is settled, are irregular, and will be overruled and expunged from the record. The remedy is not by demurrer, for the reasons already given, but by motion to strike out as redundant and superfluous. If, however, a plaintiff, instead of moving to strike out should demur to the vicious defenses, and that demurrer should happen to be sustained by the lower court, no material error would have been committed, for the same result would have been reached which would be attained by a motion; the record would have been cleansed of its redundancy, and the general denial would remain, under which all the facts constituting the defense, and which have been set forth at large in the rejected paragraphs could be given in evidence at the trial. This practice, I say, is thoroughly settled in Indiana; and the result is a system of pleading in that State which far surpasses, in its brevity and its adherence to the spirit of the codes, that prevailing in any other State.” Pomeroy's Code Remedies (5th Ed.) § 523, and cases cited in note 74.

It is clear from the Indiana cases cited by Pomeroy that the technically correct method of getting rid of an argumentative denial is by motion to strike out and not by demurrer, since a denial, whether direct or argumentative, is not subject to a demurrer under the Code; but it is a well-established and sound rule that it is not reversible error either to overrule or to sustain a demurrer to an argumentative denial accompanying a general denial. No harm is done the defendant by sustaining the demurrer, since he can make his full defense under the general denial; and it is just as clear that no harm is done to the plaintiff by overruling his demurrer, since no evidence can be introduced under the argumentative denial which cannot be introduced under the general denial. Both parties in their briefs apparently treat the second paragraph of answer as if it were an affirmative defense containing new matter.

[5] We can dispose of the second to fifth specifications of error together, as they all relate to the court's action in refusing to set aside the submission of the cause and to appoint a new judge. The pertinent provisions of the statute involved are as follows: “*** And whenever any issue of law or fact is submitted to the court for trial, and the judge shall take the same under advisement, the judge shall not, except in case of severe illness of himself or family, hold the same under advisement for more than sixty days; and, if the court wherein said issues arose be not then in session, he shall file his determination therein, in writing, with the papers in the case; Provided, That if the judge shall fail to determine any issue of law or fact which has been taken under advisement within ninety days after having taken the same under advisement, upon written application of any of the parties to the action, or their attorneys of record, duly filed in the office of the clerk of said court and called to the attention of said judge before the announcement of the decision of the issue in question, the submission of said issue shall thereupon be withdrawn and the judge before whom said cause is pending shall be disqualified to hear or determine any of the issues in said cause, and a special judge shall be appointed to take jurisdiction thereof under the same rules and regulations prescribed by law in cases where the judge is disqualified for hearing a given cause.” § 603, Burns' Ann. St. 1926, Acts 1881, Sp. Sess. c. 38, § 394, p. 240, as amended, Acts 1923, c. 83, p. 254.

The statute creates a procedural privilege of which a party may or may not take advantage, and like other procedural privileges it may be waived.

[6][7] The record discloses that the arguments were concluded May 23, 1928, and that no further action was taken until September 4, 1928, when the relatrix by motion requested the court to set aside the submission and to appoint a special judge. The motion was set for hearing on Monday, September 17, 1928, and was, on that date, overruled, the record showing the following entry “*** Which motion is now by the court overruled and denied to which ruling of the court plaintiff excepts and the court files written decision overruling said motion and showing the court's reason therefor, to which ruling of the court, the plaintiff and relator object and except and said motion and the court's written ruling thereof are now filed and ordered made a part of the record herein without Bill of Exceptions.”

The court's written statement of reasons contains the following facts: That on May 3, 1928, plaintiff's attorney indicated that he desired to file a brief in the cause, and the court delayed the decision until he received the brief on the 20th day of May, 1928; that the court set the cause for decision and determination on July 10, 1928; that on the 10th day of July, 1928, the court actually entered on its docket a finding and judgment for the...