State ex rel. Kiser, Cohn & Shumaker v. Sammons

• Decision Date: 22 November 1944
• Docket Number: 24048.
• Citation: 57 N.E.2d 587,223 Ind. 27
• Court: Indiana Supreme Court
• Parties: STATE ex rel. KISER, COHN & SHUMAKER, Inc., v. SAMMONS et al.

57 N.E.2d 587

223 Ind. 27

STATE ex rel. KISER, COHN & SHUMAKER, Inc., v. SAMMONS et al.

No. 24048.

Supreme Court of Indiana

November 22, 1944

Gavit & Richardson, of Gary, for relator.

Jay E. Darlington, of Hammond, and Herbert T Johnson, of Crown Point, for respondent.

RICHMAN Judge.

Upon relator's verified petition we ordered that respondents show cause why a writ of prohibition should not issue. The controversy is between relator and respondent James T. Vie whose answer is argumentative. It is verified by his attorney, Jay E. Darlington, who is referred to hereinafter as Vie's attorney. Searching through the answer we find that the material averments of relator's petition are either admitted or not denied.

Several years ago in a receivership cause pending in the Lake Circuit Court James Dexter filed a petition asking for relief against the relator herein. In his petition he incorporated an allegation that he acted for himself and all others similarly situated. After certain pleadings were filed and ruled upon by the regular judge, relator asked for change of judge and respondent George Sammons was named, qualified and was so acting when Dexter died. A demurrer to Dexter's petition was then pending. Mr. Sammons is a practicing lawyer residing and having his law office in Kentland, Indiana, in Newton County which adjoins Lake County where the case is pending. Since Dexter's death more than two years ago no action was taken in the case until the 6th day of September, 1944. On that day, without notice to relator's attorneys and without their knowledge, Vie's attorney went to the office of Mr. Sammons in Kentland, 'exhibited' to him a pleading entitled 'Joinder of John T. Vie in petition of James C. Dexter' and also an affidavit for a change of judge signed by Vie, and submitted a blank described as 'a typewritten minute blank 'granting' the change of judge.' To this Mr. Sammons affixed his signature. The answer states that Vie's attorney then took the three papers to the bailiff of the Lake Circuit Court, which was then in session, 'exhibited said papers to the bailiff and affixed a stamp 'filed in open court' on said papers, after which, with the bailiff's consent, he placed them in the hands of the clerk of said court and called the clerk's attention thereto with the request that the clerk perform his function of certifying the matter to the clerk of the Supreme Court for selection of names from which to choose a special judge.' The clerk made order book entries of the filing of the 'joinder petition' and the filing and granting of the motion for change of venue and certified the facts to the clerk of the Supreme Court who submitted a list of names. Then for the first time Vie's attorney informed relator's attorneys of the proceedings and asked that they strike one of the names. They refused. The clerk struck for them and respondent Johnson's name was the one left on the list of three. In order that the question of jurisdiction might be presented to this court Mr. Johnson qualified by taking the oath. Neither special judge desires to serve and each, it seems, is doubting his jurisdiction. Relator contends that Mr. Sammons is the judge and refuses to participate in proceedings before Mr. Johnson as special judge and respondent Vie takes the opposite position.

This is an intolerable situation justifying the intervention of this court. In State ex rel. Youngblood v. Warrick Circuit Court, 1935, 208 Ind. 594, 196 N.E. 254, 256, this court said 'The Warrick circuit court with Special Judge Markel presiding is an entirely different entity from the Warrick circuit court with Special Judge Wood presiding. They are of equal rank; both are asserting jurisdiction. The relator appeared specially and questioned the jurisdiction of Special Judge Gray. After an adverse ruling he is not required to refrain from further protecting his rights. He has also submitted without question to the jurisdiction of Judge Markel. It is obvious that both do not have jurisdiction. The letter and spirit of the statute require that this court determine the question of the jurisdiction now without waiting for two appeals. Murphy v. Daly, 1934, 206 Ind. 179, 188 N.E. 769; State ex rel. Burk v. Sparks, 1931, 202 Ind. 463, 176 N.E. 8; State ex rel. Cook v. Circuit Court, etc., 1923, 193 Ind. 20, 138 N.E. 762.

We find it unnecessary now to decide whether the death of Dexter abated the cause of action. This will be one of the first questions for the trial court to determine judicially following the mandate of this court. If it errs, remedy is by appeal.

The authority for representative actions is found in § 2-220 Burns' 1933, § 35, Baldwin's 1934, which states that when 'the question is one of a common or general interest of many persons, or where the parties are numerous and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole.' This was a rule of equity but the statute has been held to be applicable also to actions at law. Board of Commissioners of Vanderburgh County v. Sanders, 1940, 218 Ind. 43, 30 N.E.2d 713, 131 A.L.R. 1048. In a discussion of the subject in 30 C.J.S., Equity, § 145, it is said: 'The persons represented are not actual parties, but are regarded as quasi parties, and for many purposes and under some circumstances they may have the rights of actual parties.' In this statement the word 'parties' is given the same significance as 'named parties' in the opinion of Judge Treanor in Siegel v. Archer, 1937, 212 Ind. 599, 10 N.E.2d 626, 628, where a distinction is made between 'parties' and 'named parties.' The opinion states: 'To permit members of the represented class to be named as parties plaintiff, as a matter of right would be to recognize a rule which would destroy the practical advantages of class suits. On the other hand, a member of the class is entitled to be named as a party plaintiff upon a showing that the original plaintiff is allowing the interests of the members of the class to be jeopardized.' Here Judge Treanor distinguishes between the rights of one who is a party of record, that is, named as such in the pleadings, and one who is an undisclosed member of a class.

We have no quarrel with the conclusion reached in Siegel v. Archer, supra, but we are not willing to give it the application contended for by respondent Vie. He seizes upon the words 'as a matter of right' in the following sentence: 'In our opinion a member of a class who desires to continue the class suit is entitled as a matter of right to be named as a party plaintiff if the named plaintiff is in fact intending voluntarily to dismiss the suit as to the class.' Vie seems to think that whenever a member of the class so desires he may take to the clerk of the court a pleading in which he asserts that he is a member of that class, file it and thence forward have all rights that could have been exercised by the original plaintiff, including the right to a change of venue. This conclusion is not supported either by reason or authority. In the Siegel case there was a petition to intervene. Adopting Judge Treanor's terminology it might have been called a petition to be named as a party plaintiff. In the very recent case of Barnard v. Kruzan, 1943, 221 Ind. 208, 46 N.E.2d 238, 242, there was a motion to intervene and it was there held that the court erred in striking it out. Judge Swaim quotes from 39 Am.Jur., Parties, § 62, as follows:

'In many instances, persons not made nominal parties to the action or proceeding are, nevertheless, represented by such parties, and therefore are, in the absence of collusion bound by the judgment. Frequently in such cases, persons who are members of the class on whose behalf suit is brought are permitted to intervene. There is, however, no absolute right to intervene in such cases, and the right to do so may be denied by the court in the exercise of its discretion, and the discretion will usually be so exercised when there is no suggestion of fraud or collusion or that the representative will not act in good faith for the...