State ex rel. Klutey v. Daviess Circuit Court
Decision Date | 15 June 1964 |
Docket Number | No. 30503,30503 |
Citation | 245 Ind. 400,199 N.E.2d 335 |
Parties | STATE of Indiana on relation of Edward L. KLUTEY, Relator, v. The DAVIESS CIRCUIT COURT of Daviess County, and Fred Dobbyn, Judge of the Daviess Circuit Court, Respondents. |
Court | Indiana Supreme Court |
Richardson & Rusk, Washington, for relator.
Dean H. Neeriemer, Washington, for respondents.
This is an original action filed by Edward L. Klutey as relator against the Daviess Circuit Court and the Honorable Fred Dobbyn as the Judge thereof.
On May 29, 1963, relator brought an action in the Daviess Circuit Court against Robert and Delores Lynn for the recovery of the reasonable value for services performed and materials allegedly furnished them. Relator recovered a judgment by default against the Lynns in the amount of $675 and costs June 29, 1963.
On September 30, 1963, having learned of the default judgment, the Lynns filed their complaint against relator to set aside the judgment on the grounds of mistake, inadvertence and excusable neglect, pursuant to statute, being § 2-1068, Burns' Ind.Stat., 1946 Replacement. Summons was duly issued and timely served upon relator. It was returnable on October 14, 1963. On that day, relator, by counsel, entered a special appearance in the cause and filed a motion to quash the summons on the ground that the Lynns' attorney had caused the Deputy Sheriff of Daviess County to amend the summons after its return and the filing thereof with the Clerk. Over objections by relator, the court, on October 18, 1963, authorized the Sheriff to amend the return of the summons.
On November 6, 1963, relator renewed his special appearance and filed a motion to quash the amended summons. Thereafter, on November 9, 1963, relator filed a motion for change of judge. This was granted. However, on November 13, 1963, the Lynns moved to set aside the order granting the change of judge. On November 15, 1963, the Judge sustained the motion to set aside the order granting the change of judge, and on November 18, 1963, he overruled the motion to quash. On November 18, 1963, relator appeared generally and filed his motion for change of judge. This was overruled on the ground that it had not been timely filed in accordance with Rule 1-12B of the Rules of the Supreme Court.
Relator alleges that on November 18, 1963, there was no motion, rule or order of court against relator had not complied. with which the relator had not complied.
On December 2, 1963, relator filed his verified petition for writ of mandate with this court, urging that an alternative writ be issued against the Daviess Circuit Court and Judge Dobbyn, as respondents, ordering a change of venue from the Judge, or, in the alternative, that respondents show cause why the writ should not be made permanent. Such a writ was issued and the respondent Judge timely filed his return to the petition.
The only real question in this case is whether relator is entitled to his change of venue from the judge. He relies upon the general rule in civil cases that when a proper application for change of judge is duly filed, it must be granted, and that the trial court has no discretion in the matter, being divested of jurisdiction to take any further action in the case except to grant the change. Flanagan, Wiltrout and Hamilton, Indiana Trial and Appellate Practice, Change of Judge, § 1251, Comments 2 and 3, page 100, and authorities cited therein. Relator asserts that if the trial judge refuses, mandate lies in the Supreme Court in this type of action, and cites State ex rel. Hobbs v. Claycombe, Judge, etc., et al. (1954), 233 Ind. 247, 118 N.E.2d 489, in support thereof. Relator further argues that prior to November 18, 1963, when the motion to quash was overruled, his general appearance was entered, his motion for change of judge was filed, the issues in law and in facts were not closed, and so he was well within the ten-day period established by Supreme Court Rule 1-12B.
Respondents' position is that the relator's motion for change of judge was not timely filed under the provisions of the rule, for the reason that the motion was filed later than ten days after the issues in the case were closed by 'operation of law.' Argument is made that in a proceeding to set aside a default judgment, the complaint is the only necessary pleading, as no answer is required, citing Davis v. Steuben Shcool Township (1898), 19 Ind.App. 694, 50 N.E. 1, and Graves v. Kelly (1916), 62 Ind.App. 164, 112 N.E. 899, as authority. Thus, the action is in the nature of a summary proceeding. 17 West's Ind.Law.Ency.M Judgment, § 199, page 314. This being the case, respondents contend that the issues were closed by operation of law on October 14, 1963, which was the return date on the summons issued and served on relator.
The statute which gives a definite relief from a default judgment is found in § 2-1068, Burns' Ind.Stat., 1946 Replacement, and reads, in pertinent part, as follows:
'The court shall relieve a party from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect, on complaint filed and notice issued, as in original actions within two years from and after the date of the judgment, * * *.'
Originally, the statutory grounds for such relief were by motion, and, if filed within term time, no notice need be given, but if filed beyond term time, notice was required. No further pleadings were necessary, and the court could summarily dispose of the matter upon affidavits and depositions. Brumbaugh et al. v. Stockman et al. (1882), 83 Ind. 583; State ex rel. Krodel v. Gilkison, Judge (1935), 209 Ind. 213, 198 N.E. 323.
Since passage of the statute calling for a complaint to be filed within two years (§ 2-1068, Burns' Ind.Stat., 1946 Replacement, supra), the courts have carried over some of the order conceptions pertaining to the motion. It has been stated that setting aside a default judgment is in the nature of a motion for new trial, State ex rel. Krodel v. Gilkinson, Judge, supra, at page 225 of 209 Ind., 198 N.E. 323; that amending the old statute and requiring a complaint to be filed as an original action did not change the rule permitting application for relief to be determined in a summary manner and without pleadings other than a complaint. Woodard v. Killen (1925), 196 Ind. 570, 148 N.E. 195. Accordingly, it has been held that the statute cannot be construed to mean that a change of venue from the county may be granted. State ex rel. Krodel v. Gilkinson, Judge, supra, at page 225 of 209 Ind., 198 N.E. 323. Yet, it does permit a change from the judge, and mandate lies for such change if timely filed and wrongfully denied. State ex rel. Hobbs v. Claycombe, Judge, etc., et al., supra.
This court, in the case of State ex rel. Beckham, Sr. v. Vanderburgh Cir. Ct. (1954), 233 Ind. 368, 371, 119 N.E.2d 713, 714, 715, said as follows:
'For these reasons we do not believe the rule pertaining to a change of venue from the judge on a motion for a new trial is applicable to a proceeding for setting aside a default judgment.'
We come to the crucial point in this case as to whether the application for change of judge was filed within the time required by Rule 1-12B of the Supreme Court. That rule, in pertinent part, reads as follows:
* * *'
It has been stated that a proceeding to set aside a default judgment raises 'only a quetion of fact.' State ex rel. Beckham, Sr. v. Vanderburgh Cir. Ct., supra, at page 371 of 233 Ind., 119 N.E.2d 713. In many cases, pursuant to § 2-1068, Burns' Ind.Stat., 1946 Replacement, supra, the defendant has filed an answer to the complaint. Walsh v. H. P. Wasson & Co., Inc. (1938), 213 Ind. 556, 13 N.E.2d 696; Kuhn v. Indiana Ice & Fuel Co. (1937), 104 Ind.App. 387, 11 N.E.2d 508; State ex rel. Hobbs v. Claycombe, Judge, etc., et al., supra; Vail v. Dept. of Financial Institutions (1938), 106 Ind.App. 39, 17 N.E.2d 854.
In Walsh v. H. P. Wasson & Co., Inc., supra, the court recites the filing of a complaint to set aside a default judgment (at page 557 of 213 Ind., at page 697 of 13 N.E.2d), (Our emphasis.)
In §...
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