State v. Hancock Superior Court, 1078S226

• Decision Date: 09 January 1979
• Docket Number: No. 1078S226,1078S226
• Citation: 383 N.E.2d 1042,270 Ind. 221
• Parties: STATE of Indiana, Relator, v. HANCOCK SUPERIOR COURT, and Hon. Richard T. Payne, Judge, Respondents.
• Court: Indiana Supreme Court

Page 1042

383 N.E.2d 1042

270 Ind. 221

STATE of Indiana, Relator, v. HANCOCK SUPERIOR COURT, and Hon. Richard T. Payne, Judge, Respondents.

No. 1078S226.

Supreme Court of Indiana.

Jan. 9, 1979.

Theo. L. Sendak, Atty. Gen., James R. Green, Deputy Atty. Gen., Robert S. Spear, Asst. Atty. Gen., Indianapolis, for relator.

Richard A. Young, Young & Young, Indianapolis, for respondents.

ORIGINAL ACTION

GIVAN, Chief Justice.

On October 13, 1978, oral argument was had. This Court issued a temporary writ of mandate and prohibition against the Respondent and directed him to grant the Relator's motion for change of venue from the judge. We now make the writ permanent.

The Union County National Bank originally filed suit against the State of Indiana in Cause No. C77-2508 in the Marion Circuit Court. On June 16, 1978, trial was had, but a mistrial was declared when the jury was unable to reach a verdict. On June 26, 1978, the State filed a motion for change of venue from the county. The court granted the motion the following day. After the parties struck from the list of surrounding counties, the case was venued to the Hancock Superior Court, where it was docketed on July 11, 1978, as Cause No. SC 78-329. On July 14, 1978, the State filed a motion for change of venue from the judge. The motion was overruled and the State then sought immediate relief from this Court.

When a new trial is granted, the parties have a right to a change of venue if filed within ten days from the date the order granting the new trial is entered on the record of the trial court. Ind.R.Tr.P. 76(5); State ex rel. Nicholson v. Knox Cir Ct. (1967) 249 Ind. 228, 231 N.E.2d 508. In the case at bar, the State filed its motion within ten days. The granting thereof was proper.

When a change of venue from the county is granted, a request for a change of judge may be made by a party still entitled to such change within ten days after the movant has knowledge the cause has reached the receiving county. Ind.R.Tr.P. 76(6). Here, the State moved for the change of judge within three days after the case was docketed in the Hancock Superior Court. The motion, therefore, should have been granted.

Counsel for respondent, however, argues that on June 19, 1978, the Marion Circuit Court reset a date for the new trial and that the failure of the State to register a prompt objection thereto accompanied with a motion for a change of venue operates as a waiver of the State's right to a change of venue. See Ind.R.Tr.P. 76(7). The respondent in his order denying the motion for change of judge found such a waiver. Nevertheless, the record as it has come to us gives no indication that the Marion Circuit Court did in fact on June 19, 1978, reset a date for a new trial. The docket sheet entries for that court are void as to such an action. Nor does the remainder of the record show a resetting of the trial. Under such circumstances, it was the duty of the respondent to tender to this Court such portions of the record, if indeed they exist. In the absence thereof, we must presume the record is accurate and there was no such...