State ex rel. City of Indianapolis on Behalf of Dept. of Redevelopment v. Superior Court of Marion County

• Decision Date: 21 September 1955
• Docket Number: No. 3,No. 29290,3,29290
• Parties: STATE of Indiana on RELATION OF CITY OF INDIANAPOLIS, by and on behalf of the DEPARTMENT OF REDEVELOPMENT, Relator, v. SUPERIOR COURT OF MARION COUNTY, Room, and Norman E. Brennan, as Judge of said Court, Respondents.
• Court: Indiana Supreme Court

Page 874

128 N.E.2d 874

235 Ind. 151

STATE of Indiana on RELATION OF CITY OF INDIANAPOLIS, by and on behalf of the DEPARTMENT OF REDEVELOPMENT, Relator, v. SUPERIOR COURT OF MARION COUNTY, Room No. 3, and Norman E Brennan, as Judge of said Court, Respondents.

No. 29290.

Supreme Court of Indiana.

Sept. 21, 1955.

Sherwood Blue, Indianapolis, for relator.

Leo L. Kriner, Indianapolis, for respondent.

ACHOR, Judge.

A temporary writ of prohibition was issued by this court on application of the relator which directed the respondents to refrain from exercising any further jurisdiction in Cause No. C-4468 in the Superior Court of Marion County, Room 3, and from taking any action to enforce an order made in that cause on May 9, 1955 until further order of this court.

The factual situation with which we are confronted is as follows: The City of Indianapolis by and on behalf of the Department of Redevelopment filed a complaint for condemnation in the Superior Court of Marion County, Room 3, which cause was assigned as No. C-4468. The record in that case, which has not been directly challenged and which we must therefore accept as authentic, reveals that the appraisers, duly appointed by the court, filed their report on January 8, 1955. (No objection was made by relator because of the appointees named or the delay in the report of such appraisers.) An affidavit and motion for change of venue from the judge was filed by plaintiff (relator herein) on February 7, 1955, which motion was sustained on February 28, 1955 but never perfected, although three prospective judges were then nominated. Thereafter, on March 2, 1955, relator filed a 'dismissal' of said action, 'Costs paid,' which dismissal was overruled by respondent, the regular judge of said court, for the reason that the fee for appraisers had not been fixed or paid. Thereafter on May 9, 1955, upon his own motion, respondent fixed the fee for the services of the three appraisers at $200 each and ordered said sums paid by relator within seven days.

The issue presented is whether or not the respondent had jurisdiction to fix such fees and tax them as costs. Relator contends that (1) 'the Respondent Judge lost jurisdiction on change of venue' and (2) 'the Respondent Court lost jurisdiction on dismissal.'

As heretofore stated a panel of prospective judges was named on February 28, 1955. However, instead of striking as provided by Rule 1-12 relator on March 2, 1955 filed its 'dismissal' of the action. There is no question that the regular judge had jurisdiction to entertain the motion and that it was sufficient to terminate all issues over which relator (as plaintiff) had complete control. The first controversy of this case arose over the right of the judge to deny the dismissal because of the fact that the appraisers' fees had not been fixed and paid. If he did not have such a right then he was clearly without jurisdiction to proceed further in the case and the writ of prohibition heretofore issued was proper. However, if the respondent judge acted within his authority in denying said dismissal then we must decide whether or not under the circumstances before us he had jurisdiction on May 9, 1955 to fix the fees of the appraisers and order the same paid.

We recognize the rule that 'Proceedings for the condemnation of private property for public use may be dismissed by the party seeking condemnation at any time; and, when that is done, the jurisdiction of the court, except in the matter of taxing costs, is terminated so far as that suit is concerned.' Jacksonville Terminal Co. v. Blanshard, 1919, 77 Fla. 855, 857, 82 So. 300.

In relation to relator's second contention we are here confronted by the fact that appraisers had been appointed by the court pursuant to § 48-8557, Burns' 1950 Repl. (1955 Supp.), Acts 1953, ch. 176, § 17, p. 603. In such capacity they were serving as officers appointed by the court and it was the statutory duty of the court, whether by regular judge or a special judge, to determine the amount of the fees for their services and to tax the same as costs in the proceedings prior to dismissal of the case.

The fixing of an attorney's fee for a wife's attorney presents a somewhat analogous situation. In such cases, we have held that the setting aside or refusal to set aside a judgment in a divorce action in order to hear evidence and fix the amount of the wife's attorney's fees is within the discretion of the court. State ex rel. McNabb v. Allen Superior Ct., 1947, 225 Ind. 402, 75 N.E.2d 788; State ex rel. De armond v. Superior Court of Madison County, 1940, 216 Ind. 641, 25 N.E.2d 642. The facts in the case at bar would seem to present an even stronger situation in support of the action of the court.

We conclude therefore that notwithstanding relator's motion to dismiss, the judge before whom the motion was filed had jurisdiction to fix the fees of the appraisers and to tax the same as costs in the action prior to acting upon relator's motion to dismiss.

The remaining major question therefore is whether the respondent, the regular judge of the court, had jurisdiction on May 9, 1955 to fix the fees of the appraisers and to order the same paid or whether as asserted in relator's rirst contention 'the Respondent Judge lost jurisdiction on change of venue.' No cases are cited and none have come to our attention which have decided this issue under the facts here presented. Specifically, the question presented is as follows: What is the status of the presiding judge with regard to jurisdiction in the cause when a motion for a change of venue from such judge had been filed and sustained, and prospective judges have been nominated as provided by Rule 1-12, but thereafter the moving party fails to strike within the time allowed?

Both this court and the Appellate Court have frequently stated that 'after a proper and sufficient affidavit is filed the court has no jurisdiction to consider any matter involved in the case.' State ex rel. Ballard v. Jefferson Cir. Ct., 1947, 225 Ind. 174, 176, 73 N.E.2d 489, 490; State ex rel. Glamack v. Horn, 1950, 228 Ind. 567, 571, 94 N.E.2d 843; Dowd v. Harmon, 1951, 229 Ind. 254, 258, 96 N.E.2d 902; State ex rel. Krupa v. Peak, 1947, 225 Ind. 164, 73 N.E.2d 482; State ex rel. Gmil v. Markey, 1951, 230 Ind. 68, 72, 101 N.E.2d 707.

When considered in the light of the facts involved in each of the above cases, the rule announced is grounded upon a foundation of sound reason. However, the rule is not absolute. The filing of a motion for change of venue does not effect a complete hiatus as to jurisdiction of the case. Rather, our courts have recognized that, notwithstanding a motion for change of venue, (1) the court may exercise limited jurisdiction where special circumstances require, and we have also held that (2) the parties may, before change of venue is completed, waive the right to the change. The rule within category (1) has been stated by this court as follows in the case of Indianapolis Dairymen's Co-op v. Bottema, 1948, 226 Ind. 260, 265, 266, 79 N.E.2d 409, 411, 412:

'* * * 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. Pending an action for divorce the trial court does not lose jurisdiction to make an order for support * * * prior to the time another court acquires jurisdiction. * * *' (Our italics.)

In support of the above statement, the court quoted from the case of State ex rel. Gwin v. Spencer, 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...