State v. McClaine

Decision Date22 August 1973
Docket NumberNo. 871S244,871S244
Citation261 Ind. 60,300 N.E.2d 342
PartiesSTATE of Indiana, Appellant, v. Carl McCLAINE et al., Appellees.
CourtIndiana Supreme Court

James L. Goodwin, Lebanon, for appellant.

Theodore L. Sendak, Atty. Gen., William D. Bucher, Deputy Atty. Gen., Indianapolis, for appellees.

HUNTER, Justice.

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:

'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 cause 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.' (Emphasis added.)

In this case, there are two lengthy...

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18 cases
  • Lake Meredith Reservoir Co. v. Amity Mut. Irr. Co.
    • United States
    • Colorado Supreme Court
    • April 29, 1985
    ...65, 468 P.2d 193 (1970); Ayers v. D.F. Quillen & Sons, Inc., 5 Storey 481, 55 Del. 481, 188 A.2d 510 (1963); State v. McClaine, 261 Ind. 60, 300 N.E.2d 342 (1973); Brymerski v. City of Great Falls, 636 P.2d 846 (Mont.1981); Spiegelman v. Gold Dust Texaco, 91 Nev. 542, 539 P.2d 1216 (1975); ......
  • Gemmer v. Anthony Wayne Bank
    • United States
    • Indiana Appellate Court
    • July 18, 1979
    ...of Trial Rule 41(E), Gemmer had the burden of moving for dismissal before the plaintiff resumed prosecution. State v. McClaine, (1973) 261 Ind. 60, 300 N.E.2d 342, 344; Farley v. Farley, (1977) Ind.App., 359 N.E.2d 583. Because the Bank requested that additional summons be issued after the ......
  • Moore v. Terre Haute First Nat. Bank
    • United States
    • Indiana Appellate Court
    • December 19, 1991
    ...such hearing." T.R. 41(E) (emphasis added).7 We remind the defendants of the rule laid down by our supreme court in State v. McClaine (1973), 261 Ind. 60, 300 N.E.2d 342 preventing the success of a T.R. 41(E) motion after a plaintiff resumes prosecution of a case. As Moore's T.R. 60(B) moti......
  • Baker Machinery, Inc. v. Superior Canopy Corp.
    • United States
    • Indiana Appellate Court
    • March 13, 2008
    ...in this case occurred, according to Baker, when it requested that the trial court set a scheduling order. Baker cites State v. McClaine, 261 Ind. 60, 300 N.E.2d 342 (1973) in support of this In McClaine, the State filed an eminent domain action on January 9, 1958. The case was dismissed pur......
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