State ex rel. Rooney v. Lake Circuit Court, 29479

• Decision Date: 11 February 1957
• Docket Number: No. 29479,29479
• Citation: 236 Ind. 345,140 N.E.2d 217
• Parties: STATE of Indiana ex rel. Andrew ROONEY and Grace Bretsch, Notary Public, Petitioner, v. LAKE CIRCUIT COURT, Honorable Felix A. Kaul, as Judge thereof, Respondents.
• Court: Indiana Supreme Court

Page 217

140 N.E.2d 217

236 Ind. 345

STATE of Indiana ex rel. Andrew ROONEY and Grace Bretsch, Notary Public, Petitioner, v. LAKE CIRCUIT COURT, Honorable Felix A. Kaul, as Judge

thereof, Respondents.

No. 29479.

Supreme Court of Indiana.

Feb. 11, 1957.

William S. Isham, Fowler, Jay E. Darlington, Hammond, for petitioner.

Joseph J. Daniels, Indianapolis, Herbert A. Friedlich, Chicago, Ill., Stephen W. Terry, Jr., Karl J. Stipher, Indianapolis, for respondents.

EMMERT, Judge.

This is an original action for an alternative writ of mandamus to require the Lake Circuit Court to order certain witnesses to appear and testify by deposition pursuant to § 2-1509, Burns' 1946 Replacement, and to vacate its prior order denying such relief. We issued the alternative writ, and the verified return pleads justification for refusal to make the order.

Relator's brief contends the return fails to comply with Rule 2-35 in that it fails to incorporate or have as exhibits thereto certified copies of all pleadings, orders and entries pertaining to the subject matter of the action pending in the Warren Circuit Court, Civil Cause No. 7231, entitled Andrew Rooney v. City of East Chicago, et al., and that, therefore, the return is insufficient.

In State ex rel. Wall v. Cass Circuit Court, 1954, 233 Ind. 192, 117 N.E.2d 126, we noted we do not conduct a hearing in original actions, but that the verified pleadings constitute the evidence, and that court proceedings must be proved as required by Rule 2-35. Since no certified copies of order book entries of the Warren Circuit Court were incorporated in or attached as exhibits to the return, it presents nothing as to the action by the Warren Circuit Court. ¹

However, the petition does have as an exhibit a transcript of the court proceedings before the Lake Circuit Court, including a bill of exceptions, and from this evidence we are enabled to decide the issue presented. When we issued the alternative writ we did decide the petition had made a prima facie case. State ex rel. Joint County Park Board, etc., v. Verbarg, 1950, 228 Ind. 280, 91 N.E.2d 916; State ex rel. Gary Rys., Inc., v. Roszkowski, 1953, 231 Ind. 669, 110 N.E.2d 746. However, this rule does not prohibit us from a reconsideration of our order issuing the writ. State ex rel. Woods v. Knox Circuit Court, 1954, 233 Ind. 552, 121 N.E.2d 880. If the writ was improvidently issued, it should now be revoked.

From petitioners' transcript, it was admitted by counsel for relators that the cause of Rooney v. City of East Chicago, et al. was being tried in the Warren Circuit Court when the plaintiff sought to take the depositions of eleven persons, some defendants and some not parties, all of whom were residents of Lake County. The petitioner failed to show any order of the Warren Circuit Court for the taking of these depositions, and we hold this burden was upon him.

Relators contend the plaintiff Rooney was not required to obtain a court order under § 2-1505, Burns' 1946 Replacement, ² even though the trial was in progress, but as of right could take the depositions the same as before trial under § 2-1506, Burns' 1946 Replacement. We do not agree with this construction of the two sections. If we were to agree with relators' position, then § 2-1505, Burns' 1946 Replacement, would be useless and surplusage. Clauses 1 and 4 of § 2-1506, Burns' 1946 Replacement, ³ indicate the deposition is to be taken before trial. Any other construction would permit a party as of right to dictate to the court when the trial should adjourn, or present a serious conflict of jurisdiction between the court trying the main cause and the court seeking to enforce the attendance of witnesses for the taking of depositions. The orderly procedure of the trial should be left to the sound legal discretion of the court trying the cause, and if such discretion be abused it can be reviewed on appeal.

The alternative writ heretofore issued is now vacated.

ACHOR, C. J., and ARTERBURN and BOBBITT, JJ., concur.

LANDIS, J., concurs in the result with separate opinion.

LANDIS, Judge (concurring in result).

I am unable to agree with that portion of the opinion which indicates that a party may not without an order of court take a deposition after the trial has commenced. The statute in unambiguous language states:

'In all actions, depositions may be taken by either party, in vacation or term time, at any time after service of summons, without order of court therefor.' ¹ (Emphasis supplied.)

Moreover, this court held in Wehrs v. State, 1892, 132 Ind. 157, 31 N.E. 779, 781, '* * * whether a cause for taking depositions exists is for the party who seeks to take them, just as he determines the necessity for subpoenaing witnesses * * *.'

See also: Kark v. Central Greyhound Lines, 1949, 119 Ind.App. 303, 85 N.E.2d 277, to the same effect. Depositions may also be taken after trial when a cause is pending on appeal. Long v. Straus, 1890, 124 Ind. 84, 24 N.E. 664.

However, I do not believe attendance at the taking of a deposition can properly be enforced in a separate court under Burns' § 2-1509, 1946 Repl. [Acts 1881 (Spec.Sess.), ch. 38, § 295, p. 240], when such enforcement would conflict with the orderly procedure of the trial of the main action which was then in progress. ² This statute was intended to facilitate the introduction of evidence and expedite the trial of causes, and it should not be construed in such a manner as to be disruptive of the trial of the main action by an independent proceeding in a separate court. ³ Respondent court accordingly very properly did not see fit here to exercise the jurisdiction it was given by statute to enforce the attendance of witnesses at the deposition. Matters touching the orderly conduct of the trial are, of course, within the sound discretion of the court trying the cause whose action is reviewable on appeal.

I therefore concur in the result of the opinion that the alternative writ of mandamus requiring respondent court to order witnesses to testify at the deposition be vacated.

1 Two supplemental returns did plead certified copies of the order book entries of the Warren Circuit Court showing a subsequent finding and judgment for the defendants in Rooney v. City of East Chicago, et...