State ex rel. Gruenoch v. Miller
| Decision Date | 18 May 1937 |
| Docket Number | 26839. |
| Citation | 8 N.E.2d 245,212 Ind. 147 |
| Parties | STATE ex rel. GRUENOCH v. MILLER, Special Judge. |
| Court | Indiana Supreme Court |
O'Neill & O'Neill, of Logansport, for appellant.
Robt. R. Miller, of Rochester, for appellee.
On March 2, 1937, relator, Albert Gruenoch filed his verified application for an alternative writ of mandate, wherein he alleged that on October 1, 1935, Laura Gruenoch filed an action for divorce in the Cass circuit court under cause No 24639, against this relator as defendant therein; that on January 20, 1937, upon motion and affidavit of relator Robert R. Miller was appointed special judge to hear and determine said cause. On February 8, 1937, Donald D O'Neill, one of relator's attorneys, offered to file his verified motion for and on behalf of relator for a change of venue from Cass county. Objections were made to the filing of this motion and the matter was set for argument on February 11, 1937; that on said last-named date and before any ruling by the court on the motion the relator offered to file his verified application for a change of venue from the county which motion was refused.
Upon the above facts this court issued a temporary writ of mandate and ordered the respondent to show cause if any he had why the writ should not be made absolute. On March 15, 1937, the respondent filed his response which in substance shows, that on October 4, 1935, upon the petition of Laura Gruenoch the defendant, Albert Gruenoch, relator herein, was ordered to pay to the clerk of the Cass circuit court the sum of $4 per week for the support of Laura Gruenoch, plaintiff therein and the further sum of $50 for suit money. That at the time respondent herein assumed jurisdiction of this case the relator herein had a no degree complied with said order. That the record in said divorce case, No. 24639, showed that a citation was issued for the defendant on November 26, 1935, and that the hearing was set for December 5, 1935. No hearing was had on that date but on December 31, 1936, defendant filed a pleading marked 'answer in two paragraphs,' but the pleading was in fact an answer in general denial, and a cross-complaint; that on June 23, 1936, defendant filed a motion and affidavit for a change of venue from Cass county, but on January 20, 1937, defendant asked and was granted leave to withdraw his affidavit for a change of venue from the county, and on the same day filed an affidavit for a change of venue from the judge, which was granted. Defendant dismissed his cross-complaint, and filed an affidavit as to his inability to pay as ordered, and the hearing on the citation by agreement of counsel was postponed until March 8, 1937. The record shows that the defendant paid no money to the clerk of the Case circuit court for the support of his wife, and on February 5, 1937, paid $20 on account of suit money. That respondent, as he appeared in the Cass circuit court on March 8, 1937, to hear the citation, was served with the temporary writ issued by this court, and for that reason no further action has been taken thereon.
Upon the above facts, should the temporary writ heretofore issued be made permanent? If the court had the right to refuse defendant's motion and affidavit for a change of venue from the county, he would upon the same reasoning have the right to refuse any other pleading offered by the defendant or to strike from the files pleadings already filed while he was in default in his payments for suit money or support money. It...
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