State ex rel. Marich v. Lake Superior Court, Room No. 5, 1179S331

• Decision Date: 08 July 1980
• Docket Number: No. 1179S331,1179S331
• Citation: 407 N.E.2d 233,273 Ind. 590
• Parties: STATE of Indiana on the Relation of Danilo MARICH and Helen Marich, Relators, v. LAKE SUPERIOR COURT, ROOM NO. 5, and Honorable James J. Richards, as Judge of said Court, Respondents.
• Court: Indiana Supreme Court

Page 233

407 N.E.2d 233

273 Ind. 590

STATE of Indiana on the Relation of Danilo MARICH and Helen Marich, Relators, v. LAKE SUPERIOR COURT, ROOM NO. 5, and Honorable James J Richards, as Judge of said Court, Respondents.

No. 1179S331.

Supreme Court of Indiana.

July 8, 1980.

Nick Katich, Merrillville, for relators.

Richard F. Benne and David E. Wickland, Highland, for respondents.

DeBRULER, Justice.

Relators appeared by counsel to a civil complaint filed against them in the respondent court and simultaneously filed an answer and motion for change of venue from the county. These were mailed by counsel to the court on August 6, 1979, and file marked by the clerk on August 9, 1979.

On August 13, 1979, the trial court listed counties and ordered the parties to strike within fourteen days pursuant to Ind. R.Tr. P. 76. Relators did not strike within the time specified and consequently on September 11, following a notice and hearing the respondent court resumed jurisdiction in the case.

Relators in their petition for extraordinary writ contended that the resumption of jurisdiction was improper and that their change of venue from the county was thereby erroneously denied.

Relators allege in their verified petition that the clerk of the court below failed to send notice pursuant to Ind. R.Tr. P. 72, advising them that the trial court had listed counties and had ordered the parties to strike within fourteen days. In support of this allegation relators attach a certified copy of the court's minutes upon which no written record had been made that the clerk did send notice of this order to them, and further in support allege under oath that no such notice was received by them.

They further have alleged in the petition that by letter dated August 8, 1979, they received a copy of a letter directed by opposing counsel to the trial judge transmitting to him a proposed order designating counties and ordering the parties to strike within fourteen days, and requesting the judge to execute that order. That order is the one executed on August 13, 1979. They contend that this letter did not provide them with sufficient notice of the order.

State ex rel. Sargent and Lundy v. Vigo Superior Court, (1973) 260 Ind. 472, 296 N.E.2d 785, is primarily relied upon by relators and is unquestionably analogous to the case presented. In granting a writ to a party in much the same position as relators here this Court declared, however, that the clerk of the trial court is under a duty pursuant to Trial Rule 72(D) to send notice of trial court orders to the parties and to memorialize such action on the court order book or civil docket recognized by Ind. R.Tr. P. 77. The certified copy of the court's minutes presented by relators is not a court order book or civil docket, and, therefore, one could not reasonably expect to find the clerk's notation upon it. It is not an adequate record upon which this Court could conclude that the clerk did not comply with Trial Rule 72(D). It is the burden of relators in an original action to present a record of the activities in the respondent trial court which are...