State ex rel. Hurd v. Davis

• Decision Date: 30 September 1948
• Docket Number: 28457.
• Citation: 82 N.E.2d 82,226 Ind. 526
• Parties: STATE ex rel. HURD v. DAVIS, Circuit Judge.
• Court: Indiana Supreme Court

82 N.E.2d 82

226 Ind. 526

STATE ex rel. HURD v. DAVIS, Circuit Judge.

No. 28457.

Supreme Court of Indiana

September 30, 1948

Rehearing Denied Nov. 9, 1948. [Copyrighted Material Omitted]

Davis & Davis, of Muncie, for relator.

Warner Clark & Warner and Bracken, Gray, DeFur & Voran, all of Muncie, amici curiae.

Joseph H. Davis, pro se, and Paul S. Brady, of Muncie, for respondent.

GILKISON Judge.

In this action relator, a minor, seeks to have the respondent as Judge of the Delaware Circuit Court mandated, first to order the clerk of his court to give notice by publication to certain named non-resident defendants to relator's amended petition to be adjudged an heir and devisee of one Ball, deceased, whose estate is pending in respondent's court for administration and settlement; second, to order the clerk of his court to issue summons for certain named resident defendants and place the same in the hands of the sheriff for service and return and third, to allow relator and his attorneys to see and inspect all pleadings, orders, entries, docket sheets and minutes in the matter of his petition, all of which respondent has ordered his clerk to impound.

Relator filed his original petition in respondent's court May 7, 1947, and on May 10, 1947, his mother, Virginia Hurd, filed her written consent to serve as next friend for relator in the action.

On May 1, 1948, in term time, relator filed his amended petition, making the several persons aforenoted parties thereto; he also filed his affidavit for notice by publication to the non-resident defendants naming them, and praying that they be notified of the pendency of the action by publication. At the same time relator asked that the respondent order the clerk to issue a summons for the resident defendants. The respondent failed to order notice by publication to the non-residents, or to order the issuance of summons for the resident defendants as requested.

The civil procedure act governing the first two propositions so far as applicable to this action is as follows:

'When a complaint is filed either in vacation or during any term of court, the plaintiff may fix the day by endorsement thereof upon the complaint, at the time of filing the same, on which the defendant shall appear, which day, when so fixed, shall be stated in the summons when issued. * * * and if, at any time after the filing of the complaint, it shall be found that any party to the action has not been properly notified, the plaintiff may file with the clerk or endorse on the complaint, in vacation, a written request for such notice to be given, and while the court is in session by obtaining an order that such notice be given, naming therein the day on which such party is required to appear in the action, and summons shall be issued or publication made accordingly, in the proper case, as above provided; * * *.' (Our italics). Burns' 1947 Supp. § 2-801; Acts 1947, Ch. 94, § 1, p. 278.

The italicized part above was not in the civil code as enacted at the Special Session, Acts 1881, Ch. 38, p. 240, § 367 p. 308. It was enacted by an amendment, Acts 1935, Ch. 213, p. 1019, § 1 and reenacted Acts 1947, Ch. 94, supra. Knue v. Knue, 1940, 217 Ind. 319, 321, 322, 28 N.E.2d 76.

In the usual operation of courts, the practice is quite simple. When new parties defendant are brought into the case in term time as was done by the amended petition filed herein, and the required affidavit of non-residence is filed as to some of them, and the matter is brought to the attention of the court with a request that it order notice by publication to the non-resident defendants, and summons for the resident defendants, the duty of the court as set forth in this statute is ministerial, clear and mandatory, and it has no discretion to exercise. 42 Am.Jur. Process, § 7, pp. 9, 10; 50 C.J., Process, § 23, p. 449. The notice and summons must be ordered.

With respect to the third proposition, respondent says that he did order the clerk to impound 'all papers belonging to said estate until further order' on May 1, 1948. But he says he did not intend by this order 'that such papers were to be kept from the litigants or interested practicing lawyers' and 'the clerk understood that litigants and interested practicing lawyers were to have access to said papers at any time upon their request, as is evidenced by the affidavit of the clerk * * *' attached to the response. On this particular subject the affidavit of the clerk, among other things, specifically states as follows:

'That on May 7, 1948, one of the attorneys for the relator made a formal written request for certified copies of certain pleadings filed in probate cause No. 9241, E. Arthur Ball Estate; that affiant did not refuse to prepare such certified copies for said attorney, but affiant did advise said attorney that, under the present order of the court, and in compliance therewith, it would be necessary and proper for him to 'clear' his request for such certified copies with the Hon. Joseph H. Davis; and further that the Hon. Joseph H. Davis later informed this affiant that no request was made to him by said attorney aforementioned or by any one else for said certified copies.' (Our italics.) It thus appears that the clerk's affidavit does not support respondent.

The purpose and object of keeping records by a court of record, is 'to secure an accurate memorial of all the proceedings in the case so that persons interested may ascertain the exact state thereof.' 21 C.J.S., Courts,§ 225, p. 417. Of course, it is a duty of the clerk of a circuit court to 'carefully preserve in such office all records and writing appertaining to his official duties;' Burns' 1933, Sec. 49-2706. An attorney at law representing a litigant who is seeking to establish his heirship in a pending estate may not lawfully be required to 'clear' his right with the judge of the court, before he may secure certified copies of papers filed in the estate, or examine the papers filed, and records made therein. He too, is an officer of the court acting under a comprehensive and binding oath and is entitled to be respected and trusted as such. He should not be needlessly hampered or restricted in his almost daily duty of examining records and procuring copies of papers filed in the clerk's office of the courts of the state where his practice requires him to go.

Art. 1, § 12, of the Constitution of Indiana provides that 'All courts shall be open; and every man, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.'

Under this section of the constitution respondent may not deny parties to the action and their attorneys free access to the papers in any case.

With respect to many of the reasons for not ordering the non-resident notice and summons given by respondent, we may say that it would have been permissible for petitioner to have indorsed his amended petition as provided in the first sentence of the statute, but such indorsement is not a requisite under the situation outlined in the last sentence quoted.

The consent to serve as next friend was filed a year and two days before the original action was filed in this court. Surely respondent may not contend that he has not had sufficient time to ascertain if the next friend is a competent and responsible person. § 2-207, Burns' 1946 Repl., provides:

'Before any process shall be issued in the name of an infant who is a sole plaintiff, a competent and responsible person shall consent, in writing, to appear as the next friend of such infant; and such next friend shall be responsible for the costs of such action; and thereupon process shall issue as in other cases. But where it shall appear to the court that such next friend is incompetent, or irresponsible, the court may remove him, and permit some suitable person to be substituted, without prejudice to the progress of the action.'

But no duty is cast upon the court sua sponti to examine minutely as to the competency or responsibility of the next friend. If after the parties are before the court, either by voluntary appearance or as a result of the service of process, incompetency or irresponsibility of the next friend is established in a legal way, the court may remove her and permit a suitable person to be substituted, and this must be done 'without prejudice to the progress of the action.' Our courts have consistently held that the provision of the statute requiring 'the filing of a written consent of the next friend before process shall issue' is directory only, in respect to the time when such consent shall be filed and that process may issue and the cause proceed without such consent, until it is required by the defendant. Greenman v. Cohee, by next friend, 1878, 61 Ind. 201, 202. Budd v. Rutherford, 1891, 4 Ind.App. 386, 389, 30 N.E. 1111.

Since the Delaware Circuit Court has 'exclusive jurisdiction of the settlement of decedents' estates,' Burns' 1946 Replacement, § 4-303, that relator filed his action in the probate proceeding, even if it be conceded that this were irregular, should not delay the case since it is within the power and duty of respondent to transfer the action to the proper docket. However, we think it was properly filed in the probate cause. ...