State v. McClaine
| Decision Date | 22 August 1973 |
| Docket Number | No. 871S244,871S244 |
| Parties | STATE of Indiana, Appellant, v. Carl McCLAINE et al., Appellees. |
| Court | Indiana Supreme Court |
James L. Goodwin, Lebanon, for appellant.
Theodore L. Sendak, Atty. Gen., William D. Bucher, Deputy Atty. Gen., Indianapolis, for appellees.
This is an appeal by the State of Indiana from an order of dismissal entered by the Boone Circuit Court on March 22, 1971. The State filed a motion to correct errors on May 20, 1971, which was overruled. This appeal resulted. Jurisdiction of the Indiana Supreme Court to entertain this appeal is based on IC 1971, 33--33--2--7 (Ind.Ann.Stat. § 4--214 (1968 Repl.)), which was in force at the time the appeal was effected.
The State initiated this action on January 9, 1958, by filing a complaint seeking the appropriation of real estate for state highway purposes. On January 21, 1958, defendant-landowners filed their answer. In February, 1958, the Boone Circuit Court ordered the real estate condemned and appointed three appraisers to make their report of valuation. All required oaths, instructions, notices, and returns were made. The appraisers filed their report in March, 1958, setting the total damages at $82,129.63, which was taken down April 24, 1958.
The State timely filed exceptions to the appraisers' report on March 13, 1958, and two days later moved for change of venue, which was not ruled upon until the hearing on the motion to dismiss in Marcy, 1971.
An offer to compromise was made by the State to the attorney for the landowners on July 19, 1966. The offer was for $66,500.00. No immediate response to this offer was made by defendants.
In April, 1967, the cause was set for trial on September 5, 1967. However, in August, 1967, landowners moved for a continuance. The trial date was accordingly set for December 11, 1967. The landowners again requested a continuance on December 6, 1967, and the trial was set for April 22, 1968. The State moved for a change of venue in April, 1968, which was stricken. Following an additional continuance on April 22, 1969, by the defendants, the State filed its request for trial on February 17, 1971. The defendant-landowners responded by filing a motion to dismiss on February 26, 1971. This motion was granted following a March, 1971, hearing. The judgment reads as follows:
'Comes now the Court finding and judgment ordering the exception of the parties dismissed for want of prosecution and further finding and judgment that the above cause has been fully and finally compromised and settled.'
The original offer to compromise was made July 19, 1966. On April 1, 1968, defendant-landowners refused the offer. Subsequent to that time, on April 15, 1968, a counter-offer was made by defendants. The counter-offer was not accepted by the State, and the Deputy Attorney General to whom the counter-offer was made expressly revoked the original offer. Notwithstanding the revocation of the offer, defendant's counsel wrote a letter on April 16, 1968, accepting the original offer. The next day counsel attempted to accept the original offer by delivering a check for $15,000.00 to the Attorney General. The $15,000.00 represented the difference between the amount taken down by defendants in 1958, and the offer to compromise. The check was not accepted by the Attorney General's office.
The State raised two issues for review:
1. Whether the Boone Circuit Court erred in dismissing the cause below for want of prosecution under TR. 41(E), IC 1971, 34--5--1--1.
2. Whether the Boone Circuit Court erred in dismissing this cause on the ground that it had been 'fully and finally compromised and settled.'
We believe the trial court did, in fact, err in dismissing the cause for want of prosecution.
TR. 41(E)--Failure to prosecute civil actions or comply with rules--reads as follows:
(Emphasis added.)
In this case, there are two lengthy...
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