State ex rel. Kealing v. Clay Circuit Court
| Decision Date | 29 October 1934 |
| Docket Number | 26488 |
| Citation | 192 N.E. 423,207 Ind. 259 |
| Parties | STATE ex rel. KEALING v. CLAY CIRCUIT COURT et al |
| Court | Indiana Supreme Court |
VENUE---Change from County---Striking Adjoining Counties---Exclusion of County from Which Venue First Changed.---Where a change of venue is granted from the county to which the cause has been venued upon a change granted the opposing party, and the parties cannot agree upon a county for the second change, it is the court's duty, in listing adjoining counties for the parties to strike under 2--1408, Burns 1933 (192 Baldwin's 1934), to exclude from such list the county from which the first change was had.
Original action by the State on relation of Margaret B. Kealing agaist the Clay circuit court and the judge thereof for writ of mandate requiring respondents to remand to the Sullivan circuit court a certain action wherein relator was plaintiff and the city of Brazil was defendant. Alternative writ made absolute.
Holmes & Holmes, of Indianapolis, and Craig & Craig, of Brazil, for relator.
This is an original action in this court for a writ of mandate requiring the respondents to remand to the Sullivan circuit court a certain cause of action wherein Margaret B. Kealing is plaintiff and the city of Brazil is defendant.
The relatrix filed a complaint against the city of Brazil in the Clay circuit court on February 28, 1933, and afterwards filed an affidavit and motion for a change of venue from the county which was granted and the cause sent to Sullivan county. On June 18, 1934, the defendant City of Brazil filed its affidavit and motion for a change of venue from Sullivan county, which motion was sustained. The parties did not agree upon a county to which the venue of said action should be changed, and the Sullivan circuit court submitted a written list of all the counties surrounding and adjoining Sullivan county, to wit: Knox county, Greene county, Vigo county, and Clay county. The relatrix herein objected to the court indicating Clay county as one of the counties from which plaintiff must strike. The objection was entered of record. The objection was overruled and an exception given the relatrix. The parties were ordered to strike from the submitted list. The city of Brazil, being the moving party then struck off Greene county; then the relatrix struck off Vigo county; then the city of Brazil struck off Knox county and thereby leaving on the list unstricken Clay county. The relatrix then objected to the venue being sent to Clay county; the objection was overruled and the cause sent to Clay county, where it was received and is now on the docket of the Clay circuit court.
That on October 1, 1934, the relatrix appeared specially in the Clay circuit court and filed her motion to remand said cause to the Sullivan circuit court for the reason that the Clay circuit court was deprived of all its jurisdiction in plaintiff's said cause by her affidavit and motion for change of venue from Clay county, and which motion was sustained on ___ day of September, 1933, and alleging and contending that the Clay circuit court could not reacquire jurisdiction of the subject-matter and parties in said cause.
That on the 11th day of October, 1934, the Clay circuit court and the Hon. John W. Baumunk, as judge of said court, overruled relatrix's motion to remand her cause to the Sullivan circuit court.
On the filing of this action an alternative writ of mandate was issued by this court commanding the respondent to remand the cause of action heretofore set out to the Sullivan circuit court or show cause why it should not be done.
The respondents file their return or answer to the writ which admits as true all the material allegations contained in the petition of relatrix for a writ of mandate except that part which alleges that relatrix would be damaged and prejudiced in her cause of action in the refusal of respondents to remand her cause of action to the Sullivan circuit court. They further answer by saying that relatrix refused and failed to strike Clay county from the written list submitted.
The question presented has arisen in several jurisdictions in this state, and to set the question at rest we consider it proper to give a written opinion in the case.
Section 2-1408, Burns' 1933, is the one involved in the instant case and is as follows:
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