State ex rel. Yockey v. Superior Court of Marion County, Room No. 6, 6

• Decision Date: 15 February 1974
• Docket Number: No. 1173S222,No. 6,R,6,1173S222
• Citation: 261 Ind. 504,307 N.E.2d 70,40 Ind.Dec. 632
• Parties: STATE of Indiana, ex rel. H. Kirkwood YOCKEY, Relator, v. The SUPERIOR COURT OF MARION COUNTY, ROOM NO. 6, and Rufus C. Kuykendall, as Judge of the Superior Court of Marion County, Roomespondents.
• Court: Indiana Supreme Court

Page 70

307 N.E.2d 70

261 Ind. 504

STATE of Indiana, ex rel. H. Kirkwood YOCKEY, Relator, v. The SUPERIOR COURT OF MARION COUNTY, ROOM NO. 6, and Rufus

C. Kuykendall, as Judge of the Superior Court of

Marion County, Room No. 6, Respondents.

No. 1173S222.

Supreme Court of Indiana.

Feb. 15, 1974.

Stephen M. Coons, Indianapolis, for relator.

Arthur J. Sullivan, David F. McNamar, Steers, Klee, Sullivan & Lemay, Indianapolis, for respondents.

HUNTER, Justice.

This original action is before us on the question of whether a temporary writ of mandate heretofore granted should be made permanent, concerning the trial court's ruling on a motion for change of venue. The sole question presented may be succinctly stated: When, for the purposes of change of venue, are the issues first closed on the merits? The stipulated facts are best summarized by outline form:

(1) June 16, 1972--Plaintiff files his complaint.

(2) September 15, 1972--Relator files his answer, counterclaim, and request for jury trial.

(3) September 21, 1972--Plaintiff files his motion to strike answer, counterclaim, and request for jury trial.

(4) September 12, 1973--Respondent judge overrules motion to strike answer and counterclaim. Sustains motion to strike request for jury trial.

(5) September 21, 1973--Relator files motion for change of venue from the judge.

(6) September 24, 1973--Motion for change of venue granted.

(7) September 26, 1973--Plaintiff files his motion to resume jurisdiction.

(8) October 4, 1973--Plaintiff files reply to relator's counterclaim.

(9) October 18, 1973--Respondent court hears argument on motion for change of venue. Sustains plaintiff's motion to resume jurisdiction.

Relator contends that, at the time he moved for change of venue from the judge, the issues had not been first closed on the merits and, therefore, he was, as a matter of law, entitled to the change of venue. His argument is based on the premise that the issues could not have been closed prior to plaintiff's reply to his counterclaim. Indeed, a reply to a denominated counterclaim is a recognized pleading under T.R. 7(A), IC 1971, 34--5--1--1.

T.R. 76 reads in pertinent part as follows:

'(1) In all cases where the venue of a civil action may now be changed from the judge or the county, such change shall be granted upon the filing of an unverified application or motion without specifically stating the ground therefor by a party or his attorney. Provided, however, a party shall be entitled to only one (1) change from the county and only one (1) change from the judge.

'(2) In any action except criminal no change of judge or change of venue from the county shall be granted except within the time herein provided. Any such application for a change of judge or change of venue shall be filed not later than ten (10) days after the issues are first closed on the merits.

'(3) Provided, however, in those cases where no pleading or answer may be required to be filed by the defending party to close issues (or no responsive pleading is required under a statute), each party shall have thirty (30) days after the filing of such case within which to request a change from the judge or the county. . . .' (Emphasis added).

Prior to the adoption of Indiana's present trial rules, our Supreme Court Rule 1--12B contained substantially the same provisions as T.R. 76. Under Rule 1--12B, it was held that the issues were deemed closed on the merits when the pleadings first formed the issues for trial. State ex rel. Hatt v. Vanderburgh Probate Court (1966), 247 Ind. 517, 219 N.E.2d 437. Therefore, where the pleadings consisted of only a complaint and answer, the filing of the answer closed the issues on the merits. State ex rel. Janelle v. Lake Superior Court (1957), 237 Ind. 3, 143 N.E.2d 288. But a pleading which did not go to the merits of the controversy did not close the issues. State ex rel. Gatewood v. Hamilton Circuit Court (1967), 248 Ind. 248, 225 N.E.2d 826 (plea in bar); State ex rel. Blood v. Gibson Circuit Court (1959), 239 Ind. 394, 157 N.E.2d 475 (motion to strike paragraph of answer); State ex rel. Canaday v. Madison Circuit Court (1967), 248 Ind. 122, 224 N.E.2d 40 (petition for temporary restraining order).

An examination of T.R. 76 reveals competing policy considerations. First, the rule is intended to guarantee a fair and impartial trial by making the automatic change of venue available. Second, the rule is designed to avoid protracted litigation by imposing a time limit after which a change of venue motion shall be denied. Thus, the instant controversy centers upon a determination of when the issues first close on the merits for the purposes of T.R. 76(2). The words 'first closed' are critical to our analysis. In weighing the competing considerations, we shall not endorse an interpretation of T.R. 76 which sanction dilatory tactics.

In a strict sense, the issues are not closed on the merits during the pleading stage. The case that can be taken to trial solely upon the issues formed by a complaint and an answer is rare indeed. Our trial rules contain liberal provisions for amending pleadings at various stages throughout the litigative process. Further, issues formed through the discovery and pretrial stages may differ significantly from those derived from the pleadings alone. The original complaint serves a notice function, and the responsive answer is designed to meet the facts presented by the complaint. Issues may be augmented by supplemental pleadings. New allegations may be raised and denied by counterclaim and reply. In short, a persuasive argument can be made that under any given set of facts it becomes a gesture in futility to determine when the issues first close on the merits. However, in our opinion, it is necessary to establish an interpretation of T.R. 76 which satisfies the policy...