State ex rel. Keesling v. Grant Circuit Court

• Decision Date: 18 November 1958
• Docket Number: No. 29716,No. 9446,9446,29716
• Citation: 153 N.E.2d 912,238 Ind. 577
• Parties: The STATE of Indiana, On the Relation of LeRoy KEESLING and Vivian Keesling, Relators, v. The GRANT CIRCUIT COURT, Grant County, Indiana, Robert T. Caine, as Judge of the Grant Circuit Court In Causeon the Docket of the Grant Circuit Court, wherein Muncie Water Works Company is named as Plaintiff and LeRoy Keesling and Vivian Keesling are named as Defendants, Respondents.
• Court: Indiana Supreme Court

Page 912

153 N.E.2d 912

238 Ind. 577

The STATE of Indiana, On the Relation of LeRoy KEESLING and Vivian Keesling, Relators, v. The GRANT CIRCUIT COURT, Grant County, Indiana, Robert T Caine, as Judge of the Grant Circuit Court In Cause No. 9446 on the Docket of the Grant Circuit Court, wherein Muncie Water Works Company is named as Plaintiff and LeRoy Keesling and Vivian Keesling are named as Defendants, Respondents.

No. 29716.

Supreme Court of Indiana.

Nov. 18, 1958.

Sidney E. McClellan, George S. Koons, Muncie, Campbell, Gemmill, Browne, Torrance & Sisson, Marion, for relator.

White, Haymond, Pierce & Beasley, Muncie, Batton, Harker, Kiley & Osborn, Marion, for respondents.

ARTERBURN, Judge.

This is an original action for a writ of prohibition to prevent the Grant Circuit Court from issuing an order for the possession of certain real estate which is the subject of an eminent domain proceeding brought by the Muncie Water Works Company.

On August 30, 1957, the Muncie Water Works Company filed in the Delaware Superior Court a complaint to appropriate the real estate of the Relators. Relators appealed from the overruling of their objection and the interlocutory order appointing appraisers and filed their appeal bond.

Thereafter on March 17, 1958, the Muncie Water Works Company requested and secured a change of venue from the Delaware Superior Court to the Grant Circuit Court, where the cause is now pending. However it was not until about May 1, 1958, that the cause, transcript, papers and files were received and docketed in the Grant Circuit Court.

In the meantime (on April 7, 1958) the amount of the award of $234,000 was paid to the clerk of the Delaware Superior Court by the Muncie Water Works Company.

The issue here as to the right to possession of the real estate and the jurisdiction of the Grant Circuit Court to enforce such possession turns on whether or not the payment to the clerk of the Delaware Superior Court was proper and pursuant to the statute after a change of venue was granted therefrom, but before it was finally perfected in the Grant Circuit Court.

The applicable statute [§ 3-1708, Burns' 1946 Replacement] provides:

'If the plaintiff shall pay to the clerk of such court the amount of damages thus assessed, it shall be lawful for such plaintiff to take possession of and hold the interest in the lands so appropriated, * * *'.

Section 3-1707, Burns' 1946 Replacement, provides with reference to the issues and appeal from exceptions filed 'the court may make such further orders, and render such finding and judgment as may seem just.'

The relator relies upon the general principle that the filing of a proper request for a change of venue immediately divests the court where the cause is pending of jurisdiction to take any further action except to grant the change. State ex rel. White Water, etc. v. Hoelscher, 1935, 208 Ind. 334, 196 N.E. 1; State ex rel. Kealing v. Clay Circuit Court, 1934, 207 Ind. 259, 192 N.E. 423.

This rule is subject to qualifications from necessity. When a change of venue is ordered, a complete hiatus in jurisdiction does not occur during the time the cause is being transferred and filed in the court to which the venue is taken, particularly as to emergency matters.

It has been held that a temporary receiver may be appointed pending the transfer and change to another county where a showing is made of such emergency. Vogel v. Chappell, 1937, 211 Ind. 310, 6 N.E.2d 953; Kist v. Coughlin, 1936, 210 Ind. 622, 1 N.E.2d 602, 4 N.E.2d 533; State ex rel. City of Indianapolis v. Superior Ct. of Marion Co., 1955, 235 Ind. 151, 128 N.E.2d 874, 131 N.E.2d 645.

Jurisdiction ver the case for the protection of the right of the parties pending the transfer of a cause after a change of venue has been granted must, from force of necessity, be in some court. To hold otherwise would leave the parties helpless. In some cases, weeks would pass before the cause and papers would reach the county to which venued. Property interest and the welfare of children would be...