State v. Deprez

Citation260 Ind. 413,296 N.E.2d 120
Decision Date21 May 1973
Docket NumberNos. 471S109--471S118,s. 471S109--471S118
PartiesSTATE of Indiana, Appellant, v. Marie DEPREZ et al., Appellees.
CourtSupreme Court of Indiana
Theodore L. Sendak, Atty. Gen., Robert F. Colker, Deputy Atty. Gen., for appellant

Brunner, Brown & Brunner, Good & Good, Shelbyville, Kunz & Kunz, Indianapolis, for appellees.

ARTERBURN, Chief Justice.

ON APPELLEES' MOTION TO DISMISS

These causes were consolidated in this Court upon petition of the Appellant and its representation that the factual situation as to the record is substantially the same in each cause, that the questions of law to be presented for review are similar or identical and that it would be more convenient to deal with these causes as a single matter. At no point in either the Brief of Appellant or in its Brief in Opposition to Motion to Dismiss or Affirm is there any allegation that the facts are sufficiently different so as to warrant a separate treatment of any of the cases consolidated herein. Thus, this opinion shall apply to all of the cases herein consolidated.

Appellant commenced the action for condemnation against the Appellees separately on or about April 13, 1959, and the Shelby Circuit Court appointed appraisers on or about July 16, 1959. The appraisers award was returned and paid into court by the State. The State filed its exceptions to appraisers' report on July 29, 1959 and thereafter the award was withdrawn by the landowners.

From 1959 until July of 1968, a period of approximately nine (9) years, there was no action of any kind made a matter of record in these cases. On July 13, 1968, a trial date was fixed; said trial date was reset for December 23, 1968 and that trial date was passed apparently without any action or appearance of any kind by the State with reference to such trial. The only local counsel to appear for the State withdrew his appearance on November 13, 1969. No other appearance was made and no action taken until October 15, 1970, at which time the landowners filed in the trial court their verified motion to dismiss under TR. 41(E), IC 1971, 34--5--1--1. That rule provides:

(E) Failure to prosecute civil actions or comply with rules. Whenever there has been a failure to comply with these rules or when no action has been taken in a civil case for a period of sixty (60) days, the court, on motion of a party or on its own motion shall order a hearing for the purpose of dismissing such case. The court shall enter an order of dismissal at plaintiff's costs if the plaintiff shall not show sufficient causes at or before such hearing. Dismissal may be withheld or reinstatement of dismissal may be made subject to the condition that the plaintiff comply with these rules and diligently prosecute the action and upon such terms that the court in its discretion determines to be necessary to assure such diligent prosecution.

The trial court then issued a rule to show cause against the State, returnable October 28, 1970 at which time a hearing was held and that court entered a simple judgment of dismissal on November 4, 1970.

On January 4, 1971 (a Monday and the sixty-first day after the entry of dismissal) Thereafter on February 3, 1971, the Shelby Circuit Court entered Special Findings of Fact, Conclusions of Law and Judgment as follows:

the State filed its Motion to Correct Errors.

SPECIAL FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT

Come now the parties, by counsel, and defendants having heretofore filed their motion to dismiss plaintiff's complaint, pursuant to Rule TR 41(E) of Indiana Rules of Procedure, and plaintiff, by counsel, pursuant to notice, enters its appearance and files its objections to the granting of said motion, which motion and objections thereto read in the words and figures as follows, to-wit:

(H.I.)

And said cause being at issue upon said pleadings, the Court heard evidence and entered judgment dismissing said cause of action and thereafter and on the 4th day of January, 1971, plaintiff filed its motion to correct errors herein.

The Court, having heard argument upon said motion to correct errors, now alters and amends said judgment by making and filing herein its special findings of facts and now states its conclusion of law thereon, all as provided for in Rules TR. 52(B) and TR. 59(E) as follows, to-wit:

The Court finds specially, that:

1. The above plaintiff, State of Indiana, has failed to show cause why said action should not be dismissed as prayed for in defendants' motion.

2. This cause was placed at issued (sic) by the State of Indiana on the 14th judicial day of the January term, 1959, of said Court, at the time the plaintiff filed its Exceptions to the Appraisers' Report.

3. That since November 13, 1969, there has been no local counsel appearing for plaintiff.

4. That this Court set the trial of this cause each and every time a setting was requested by plaintiff.

5. That at no time did the State of Indiana appear at the time, or times, when the cause was set for trial, ready to try the same.

6. That at no time did the defendants or any of them request a continuance of such action from the date set for trial.

7. That the Shelby Circuit Court, during the time this case has been pending, has tried many road condemnation cases wherein the State of Indiana was plaintiff and that the Court calendar was such that this case could have been tried had request been made by plaintiff.

8. That upon the filing of the complaint herein, the Court promptly and without delay permitted the case to take precedence over other cases pending in that he immediately appointed appraisers, instructed them, received their appraisements and accepted for filing the plaintiff's Exceptions thereto.

9. That the Shelby Circuit Court provided adequate rules and procedure for placing of actions upon the trial calendar.

10. That plaintiff did not request trial by jury within the time permitted by law.

11. That the judgment of this Court upon the Motion to Dismiss is not a judgment for damages.

12. The issues formed in this case were formed by the filing of plaintiff's complaint; and defendant, Ralph Williams, petition to intervene as defendant; and plaintiff's Exceptions to the Court Appointed Appraisers' Report, and therefore plaintiff was the moving party with the burden of going forward with the prosecution of this action.

13. There has been no pleading of defendants pending which formed any issue to be tried since on or about the 32nd judicial day of the January 1959, of said Court, when the award of the Court Appointed Appraisers was withdrawn under Order of Court.

14. That the judge who heard said Motion to Dismiss and rendered the decision thereon, has now been succeeded by the duly elected and qualified Judge of the Shelby Circuit Court on January 1, 1971, and that the Judge hearing plaintiff's Motion to Correct Errors has no authority to assign said cause of action for trial.

15. That defendants nor either of them have done anything to impede or avoid the trial of said cause during the eleven (11) years since the filing of the Exceptions to the Appraisers' Report by plaintiff.

16. That conditions and circumstances surrounding the appropriated property have changed substantially since the time of the appropriation which would be prejudicial to the defendants to now try said cause of action.

17. That the Judge of the Shelby Circuit Court did not fail or neglect to comply with TR. 40(A) which became effective January 1, 1970.

18. That the facts stated in Specification 1, 2, 5, 6 under Assignment 1, and the facts stated in Specification 1, 2, 3 under Assignment 2 of State's Motion to Correct Errors, which do not appear of record, are not supported by affidavits as required by Rule TR. 59(D) and, therefore, cannot be considered.

CONCLUSIONS OF LAW

1. The law is with the defendants.

2. The issues to be tried in this case were formed by the filing of plaintiff's Exceptions to the Court Appointed Appraisers' Report. Defendant had no pleading pending forming any issue, the burden of going forward with the trial of the action was upon plaintiff.

s/ Harold G. Barger

TRIAL JUDGE, Shelby Circuit Court

And the plaintiff excepts to each conclusion of law separately and severally.

And the Court now overrules plaintiff's Motion to Correct...

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