State ex rel. Crosby v. Decatur Circuit Court, 30809

• Decision Date: 27 September 1966
• Docket Number: No. 30809,30809
• Citation: 247 Ind. 567,9 Ind.Dec. 149,219 N.E.2d 898
• Parties: STATE of Indiana on the Relation of George CROSBY, Relator, v. The DECATUR CIRCUIT COURT of Decatur County, Indiana, Leroy C. Hanby, Special Judge, Respondents.
• Court: Indiana Supreme Court

Page 898

219 N.E.2d 898

247 Ind. 567

STATE of Indiana on the Relation of George CROSBY, Relator, v. The DECATUR CIRCUIT COURT of Decatur County, Indiana, Leroy

C. Hanby, Special Judge, Respondents.

No. 30809.

Supreme Court of Indiana.

Sept. 27, 1966.

Frank I. Hamilton, Greensburg, Donald L. Brunner, Brunner, Brown & Brunner, Shelbyville, for relator.

Hubert E. Wickens, Don H. Wickens, Wickens & Wickens, Greensburg, for respondents.

ORIGINAL ACTION

JACKSON, Judge.

Relator herein filed a 'Verified Petition For Writ of Mandate' seeking a change of venue from Decatur County, Indiana, in a cause pending in said Decatur County Circuit Court entitled George Crosby, et al. vs. Decatur County Community Schools of Decatur County, Indiana, et al., being cause No. 4176.

To the petition so filed the respondents filed as paragraph I of Answer a Motion to Dismiss for the reason that the petition and its exhibits are defective in that they do not include a certified copy of the Decatur Circuit Court's order book entries or a copy of the entries and orders made by the Decatur Circuit Court as required by Rule 2--35 of this Court. Prayer to this paragraph of answer was that the petition be dismissed.

For second paragraph of Answer to the petition the respondents allege that on June 11, 1965, answers were filed to relator's complaint below and the cause was set for trial for June 21, 1965; that relator and defendants were present by counsel on said June 11, 1965, and relator's counsel made no objection to the setting of said cause for trial, did not move for a change of venue and that the order book entry does not show any objections to setting the case for trial. Such second paragraph of answer further alleges that on June 19, 1965, relator filed a motion for change of venue from the county. Certain defendants filed motion to strike out and reject the motion for change of venue. Such motion was set for argument June 23, 1965, and trial set for June 21, 1965, was postponed until July 9, 1965, to which resetting relator's attorneys being present made no objection. Prayer at the conclusion of this paragraph of answer was that the court deny Petition for Writ of Mandate.

The first paragraph of answer raises the question as to the sufficiency of the petition under Rule 2--35 of this Court, which pertinent part reads as follows:

'* * * If the relief sought relates to a proceeding in an inferior court, certified copies of all pleadings, orders and entries pertaining to the subject matter should be set out in the petition or made exhibits thereto. * * *'

The second paragraph of answer and the relief prayed for therein is predicated on the theory that relator waived his right to the change of venue by failure to comply with the provisions of Rule 1--12B(7) of this Court which in pertinent part reads as follows:

'Provided further, a party shall be deemed to have waived a request for a change of judge or county if a cause is set for trial before the expiration of the date within which a party may ask for a change,...