State ex rel. Victory Lanes, Inc. v. Blackford Circuit Court, Blackford County, 16263
| Decision Date | 29 November 1967 |
| Docket Number | No. 30705,No. 16263,16263,30705 |
| Citation | 249 Ind. 178,231 N.E.2d 140 |
| Parties | The STATE of Indiana on the relation of VICTORY LANES, INC., Relator, v. The BLACKFORD CIRCUIT COURT, BLACKFORD COUNTY, Indiana, Orville A. Pursley, as Judge of the Blackford Circuit Court in Causeon the Docket of the Blackford Circuit Court, wherein Brunswick Corporation is named as Plaintiff and Victory Lanes, Inc. is named as Defendant, Respondents. |
| Court | Indiana Supreme Court |
Sidney E. McClellan, George S. Koons, Muncie, David D. Wilson, Hartford City, for relator.
William E. Ervin, Peterson, Ervin & Barry, Hartford City, O. A. Pursley, pro se, for respondents.
ORIGINAL ACTION
This is an original action wherein the relator seeks a temporary writ of prohibition and an alternative writ of mandate. The facts are as follows:
1. The relator is defendant in an action filed in the Blackford Circuit Court on the 18th day of December, 1964, in Cause No. 16263.
2. The plaintiff, in said cause of action, on December 18, 1964, filed an application for an appointment of a receiver pendente lite.
3. On the day said application was filed, the court fixed the 23rd day of December, 1964, for the hearing on said application for receiver.
4. At the time the date for the hearing was fixed, counsel for the relator was present in court and engaged in conversation with counsel for the plaintiff below.
5. On the 23rd of December, 1964, the relator filed its special appearance, a plea in abatement, a motion for a continuance, and a motion for change of venue from the judge. The Respondent Judge overruled the plea in abatement, the motion for continuance, and the motion for change of judge, and proceeded to the hearing on the appointment of a receiver. The motion for change of venue was unverified and was unsupported by affidavit. Such motion for change of venue was limited to the receivership application.
Supreme Court Rule 1--12B(1), 1964, reads as follows:
We conclude that under the law existing prior to the adoption of Rule 1--12B(1), the relator would have been entitled to a change of venue from the judge on the application for the appointment of a receiver if a proper application was filed.
Prior to Rule 1--12B(1), Burns' Indiana Statutes, Anno., § 2--1402, (1946 Repl.), read as follows:
'Change of judge in cases not triable by jury.--When any matter of a civil, statutory or equitable nature not triable by a jury, is pending, the judge before whom said cause is pending shall change the venue thereof upon the application of In the case of Stair v. Meissel (1934), 207 Ind. 280, 192 N.E. 453, this Court said the provisions of Burns' Indiana Statutes, Anno., § 2--1402, (1933 Repl.) providing for a change from the judge in certain proceedings is broad enough to include application for receivership in a pending suit.
either party to such cause, made upon affidavit, of either party or his attorney, showing any one (1) or more of the reasons named in the statutes of this state authorizing changes of venue from the judge in civil actions. And the presiding judge shall make an appointment of a special judge to hear such cause in the manner provided by law for changes of venue in civil actions.'
We then come to the question of whether or not the application in the form filed, and at the time filed, was adequate to meet the other provisions of Rule 1--12B.
Supreme Court Rule 1--12B(7), 1964, reads as follows:
The application for change of judge is as follows:
VICTORY LANES, INC.
RECEIVERSHIP APPLICATION ONLY
Victory Lanes, Inc., by its attorney, defendant, moves the Court for a change of venue from the Honorable Orville A. Pursley the Judge before whom this cause is now pending for the following cause:
On account of the bias and prejudice of said Judge against the defendant, and to their defense of this action which bias and prejudice the defendant say now exists.
/s/ David D. Wilson
David D. Wilson
Attorney for Defendant'
It is evident from the application that the relator has not conformed with the provisions of Rule 1--12B(7). The application for the appointment of receiver was, on the 18th day of December, 1964, set for hearing, or trial, on the 23rd day of December, 1964.
The setting of such hearing, or trial, was entered in the order book on the 18th day of December, 1964.
In his application for change from judge, supra, the relator did not conform to the requisites of Rule 1--12B(7) in that he failed to show in his motion, or any other supporting documents furnished us in such action, why he did not object when he first learned of the setting of such cause for trial. Relator failed to show that he acted promptly as required under Rule 1--12B(7), if his right to change of venue from judge was to be preserved.
The petition together with the supporting exhibits failed to show compliance with Rule 1--12B(7) and, in addition thereto, certain exhibits filed by the respondent indicate that relator, by counsel, had full knowledge of the setting for hearing of the application for the appointment of receiver and that relator, by counsel, delayed its objection as provided by Rule 1--12B(7).
We conclude that the temporary writ was improvidently issued, and a permanent writ is denied.
DISSENTING OPINION
I am not able to agree with the majority opinion herein and therefore dessent thereto.
Relator's brief filed herein recites the following actions of the respondent judge as being erroneous in this to-wit:
'(a) Summarily overruling the plea in abatement filed by the Defendant in said cause;
'(b) Overruling motion of the Defendant for a change of judge in said cause;
'(c) Appointing a receiver for the Defendant in said cause.'
The statement of the record as encompassed in relator's brief is as follows:
'1. That the relator is the Defendant in an action filed by the Brunswick Corporation on the 18th day of December, 1964, in the Blackford Circuit Court of Blackford County, Indiana, and docketed therein as Cause No. 16263 on the docket of said Court.
'2. That on the 18th day of December, 1964, said Plaintiff, Brunswick Corporation, filed its complaint against said Defendant, Victory Lanes, Inc., relator herein, in the Blackford Circuit Court, which said complaint was docketed therein as Cause No. 16263 in said Court.
'3. That on the said 18th day of December, 1964, said Plaintiff filed its...
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