State ex rel. Sargent and Lundy v. Vigo Superior Court, 473S67

• Court: Indiana Supreme Court
• Writing for the Court: ARTERBURN
• Citation: State ex rel. Sargent and Lundy v. Vigo Superior Court, 296 N.E.2d 785, 260 Ind. 472 (Ind. 1973)
• Decision Date: 29 May 1973
• Docket Number: No. 473S67,473S67
• Parties: STATE of Indiana ex rel. SARGENT & LUNDY, Relator, v. The VIGO SUPERIOR COURT, and Harold J. Bitzegaio, as Judge of the Vigo Superior Court, Respondents.

Page 785

296 N.E.2d 785

260 Ind. 472

STATE of Indiana ex rel. SARGENT & LUNDY, Relator, v. The VIGO SUPERIOR COURT, and Harold J. Bitzegaio, as Judge of the Vigo Superior Court, Respondents.

No. 473S67.

Supreme Court of Indiana.

May 29, 1973.

[260 Ind. 473] James J. Stewart, Stewart, Irwin, Gilliom, Fuller & Meyer, Indianapolis, for relator.

Harold J. Bitzegaio, pro se.

ORIGINAL ACTION

ARTERBURN, Chief Justice.

These cases come before this court upon Relator's petition for a writ of mandate against the Respondent. This court issued a temporary alternative writ of mandate and ordered Respondent to show cause why said writ should not be made permanent. We proceed to decide the issues raised in Respondent's answer. Since these cases arise on exactly the same facts, they have been consolidated to expedite our decision.

On December 1, 1972, the Relator filed a motion for change of venue in the Vigo Superior Court. On December 6, 1972 Respondent granted the motion, named the adjoining counties, and ruled that the Relator, Sargent and Lundy, was to strike first. On December 18, 1972, the Respondent resumed jurisdiction of the lawsuit since Sargent and Lundy, the moving party for the change of venue, had failed to strike the name of a county within what Respondent considered was the time allowed by the applicable trial rule, TR. 76(9). The question presented by Relator's petition for a writ of mandate was, therefore, whether the Respondent had lawfully resumed jurisdiction of the cause or whether the Relator had further time to strike since Relator claimed it had never received notification of the court's ruling on its motion for change of venue.

The Respondent asserts that notice of his ruling was mailed to the Relator on December 6, 1972, and that by computing the time allowed by Trial Rule 76(9), the Relator had until December 16, 1972, to strike, and having failed to do so, the court properly resumed jurisdiction of the cause. Relator argues that it never received any actual notice of the ruling on the motion for a change of venue, and learned about it from a co-defendant who received a postal card postmarked December 11, 1972, which was made an exhibit to the Relator's petition for this writ of mandate. By using December 11, 1972 as the commencement of the running of the time the relator would have until December 24, 1972 to strike and, therefore, Respondent's resumption of jurisdiction on December 18, 1972 was premature. Trial Rule 76, Section (9) provides:

Whenever a change of venue from the county is granted, if the parties to such action shall agree in open court, within three (3) days from the granting of the motion or affidavit for the change of venue, upon the county to which the change of venue shall be changed, it shall be the duty of the court to transfer such action to such county. In the absence of such agreement, it shall be the duty of the court within two (2) days thereafter to submit to the parties a written list of all the counties adjoining the county from which the venue is changed and the parties within seven (7) days thereafter, or within such time, not to exceed fourteen (14) days, as the court shall fix, shall each alternately strike off the names of such counties. The party first filing such motion shall strike first, and the action shall be sent to the county remaining not stricken under such procedure. If a moving party fails to so strike within said time, he shall not be entitled to a change of venue, and the court shall resume general jurisdiction of the cause. If a nonmoving party fails to strike off the names of such counties within the time limited, then the clerk shall strike off such names for such party.

Trial Rule 72(D) provides that mailing is notice for all purposes, and Trial Rule 6(E) very clearly provides an additional three (3) days if reliance is placed on the mail to give notice.

Some of the confusion in this case results from the type of records kept by the court and the clerk. The respondent judge in this case filed what he calls a journal record, which is his minutes made at the time his acts occurred. This record might be referred to as the minute sheet or minute book of the court which is not made by the clerk. Trial Rule 77(B) provides that the clerk shall keep the record of the court and make the entries as to process, notice and filing and the court's actions. This is the record through which the court speaks and from which certified copies are made to...