State ex rel. O'Rear v. Posey Circuit Court
| Decision Date | 06 June 1963 |
| Docket Number | No. 30407,30407 |
| Citation | 244 Ind. 60,190 N.E.2d 656 |
| Parties | STATE of Indiana on the relation of Charles A. O'REAR, Relator, v. POSEY CIRCUIT COURT, Addison M. Beavers, Special Judge of the Posey Circuit Court, Respondents. |
| Court | Indiana Supreme Court |
John D. Clouse, Evansville, for relator.
Clements & McClellan, by K. Richard Hawley, of counsel, Mount Vernon, for respondents.
This court, on petition of the relator, heretofore issued a temporary writ of prohibition commanding the respondents to refrain, until further order of this court, from proceeding or exercising jurisdiction in any and all matters pertaining to the cause of 'Don Strickland v. Charles A. O'Rear,' being Cause No. 4323 of the Records of the Posey Circuit Court, except to strike out and expunge the order of March 21, 1963, in which the Honorable A. Dale Eby, special judge of the court, disqualified himself, and all subsequent orders entered in said cause, or to show cause why the writ should not be made permanent.
The issue presented by the proceedings is unique.
The factual situation giving rise to the proceedings is as follows: On or about August 9, 1957, Charles A. O'Rear filed a complaint in the Posey Circuit Court against Don Strickland for an accounting, that cause being No. 4200. Thereafter a default judgment was entered against Strickland in the sum of $4,873.33.
Thereafter, on November 2, 1957, upon learning for the first time of the pendency of the action, Strickland employed DeRoo Weber, a member of the bar and a practicing attorney in Posey County, to represent him in connection with the default judgment. Thereafter, on December 14, 1957, said attorney filed a motion to set aside the default judgment, which motion was submitted to the court, but without any evidence being introduced in support thereof, whereupon the motion was denied.
Thereafter, on or about February 14, 1958, Strickland, by and through his attorney DeRoo Weber, filed his complaint in two paragraphs against Charles A. O'Rear, this being Cause No. 4323, to set aside the default judgment in Cause No. 4200. The first paragraph of the complaint alleged that no valid service was had upon plaintiff Strickland, and that he was never indebted to the said defendant O'Rear in the amount for which the judgment was taken. A second paragraph of complaint alleged the same defect in the service of summons and further alleged:
This complaint was also disposed of without any evidence being heard. Instead, it was stipulated by counsel that plaintiff Strickland take nothing by his first paragraph of complaint. It was further stipulated that the allegations of the second paragraph of complaint be accepted as true, and that the same be admitted in evidence. On the basis of this record which did not state sufficient cause for setting aside the judgment, the court entered judgment Strickland, from which judgment he appealed.
The Appellate Court affirmed the judgment of the trial court on the ground that the second paragraph of complaint merely challenged the sufficiency of the complaint in the original action and failed to show that the plaintiff had any meritorious defense to that action. [Strickland v. O'Rear (1961), Ind.App., 176 N.E.2d 902.] This court denied transfer on January 31, 1963.
Notwithstanding the judgment in the trial court and on appeal, on March 27, 1963 Strickland filed a petition in said Cause No. 4323, in which he again alleged the failure of proper service of summons; that he had a good and meritorious defense to the cause, in that he was never indebted to Charles A. O'Rear in the sum of $4,873.33, and that he could have proved these facts had the issue been properly presented, but that he was prevented from doing so by the incompetence of his counsel.
The petition further alleged that from the time petitioner first employed the said DeRoo Weber, petitioner 'has relied upon the skill and expert legal advice' of said attorney 'to represent him in connection with the cause of action of Charles A. O'Rear.' That on or about February 5, 1963, petitioner 'was informed and he now verily believes that said DeRoo Weber has been judicially declared to be mentally incompetent and incapable of managing his business affairs; [and that] your petitioner is further informed, that there is medical evidence that said DeRoo Weber has been mentally incompetent for a period of more than five years.' Further, petitioner asserted that 'petitioner had no knowledge of the fact that said DeRoo Weber was at said time and at all times since then, mentally incompetent and incapable of representing the interests of your petitioner in said cause of action.' Petitioner further stated that since the rendition of said judgment the position of the parties had not changed with respect thereto.
The respondent herein, who assumed jurisdiction of the case upon disqualification of the regular judge, on the strength of the petition of Don Strickland, issued an injunction prohibiting the relator O'Rear from taking any further action in a cause of action pending in the Vanderburgh Circuit Court, wherein relator was seeking to recover on a bond, issued in stay of execution pending the appeal of the case. Relator was further restrained from issuing execution of the judgment in Cause No. 4200 in the Posey Circuit Court.
Relator, in the proceedings now before us, in support of his petition for a writ of prohibition, cites in his brief the following propositions and principles of law:
'The decision of an appellate tribunal becomes the law of the case and governs the case throughout all of its subsequent stages, as to all questions which were presented and decided, or which were or might have been litigated, even though erroneous, in so far as it declares the law, and must be adhered to not only in the trial court, but also in the appellate tribunal. * * *
'Under this doctrine, when a judgment on the merits is affirmed on appeal it cannot be attacked in a subsequent proceeding.' West's Indiana Law Encyclopedia, Vol. 2 [Appeals] pp. 756-757, § 674.
'On remand the trial court has jurisdiction to take such action as law and justice may require under the circumstances as long as it is not inconsistent with the mandate and judgment of the appellate tribunal. However, where the appellate tribunal, by its decision and directions, has put an end to the litigation, the trial court is without jurisdiction except to comply with whatever directions are made.
* * *
* * *
'On remand of a cause after appeal, the trial court must follow the directions in, and comply with, the mandate of the...
To continue reading
Request your trial