White v. Crow, 19613

• Decision Date: 16 September 1963
• Docket Number: No. 19613,No. 2,19613,2
• Citation: 192 N.E.2d 478
• Parties: Lizzie Lyles WHITE, Estate of John J. White Deceased, Carl Hardiman as Administrator of the Estate of John J. White, Deceased, Appellants, v. George L. CROW, Appellee
• Court: Indiana Appellate Court

Page 478

192 N.E.2d 478

Lizzie Lyles WHITE, Estate of John J. White Deceased, Carl

Hardiman as Administrator of the Estate of John J.

White, Deceased, Appellants, v. George L. CROW, Appellee.

No. 19613.

Appellate Court of Indiana, Division No. 2.

Sept. 16, 1963.

Rehearing Denied Oct. 15, 1963.

Opinion Superseded 198 N.E.2d 222.

Sanford Trippet, Arthur S. Wilson, Princeton, for appellants.

Weyerbacher, Lacey & Rideout, Boonville, McDonald & McDonald, Princeton, for appellee.

KELLEY, Judge.

Appellants specify error in the denial by the court of their motion for change of venue from the judge.

It appears from the record that appellee's claim was filed in the Gibson Circuit Court on March 22, 1958. On July 15, 1958, claimant requested trial by jury and on July 24, 1958 the action was duly ordered venued to the Warrick Circuit Court. The latter court received and docketed the cause on August 15, 1958, in vacation. On September 18, 1958 the appellants filed a motion to make the claim more specific. This motion was overruled by the court on October 13, 1958 and the court at the same time entered its order that 'the defendant is ruled to answer on November 3, 1958.' Subsequently, on November 1, 1958, the appellants filed a demurrer to the claim on the ground that the claim failed to state facts sufficient to constitute a cause of action. Along with said demurrer, the appellants, on said November 1, 1958, filed their motion for a change of venue from the judge. Appellee filed his objections to the motion and on July 17, 1959 the court denied said motion. Thereafter, the cause was submitted to trial by jury and resulted in a money recovery verdict for appellee. Appellants' motion for a new trial, specifying error in the denial of the motion for change of venue from the judge, was overruled by the court.

Appellee asserts that under the provisions of § 7-812, Burns' 1953 Replacement, the issues were closed by operation of law when the claim was transferred to the issue docket for trial and that since Rule 1-12B of the Supreme Court rules, as amended, became effective on September 1, 1958, the appellants were required to file their motion for change of venue from the judge within ten (10) days from September 1, 1958.

Said § 7-812, Burns' 1953 Replacement, being Acts 1953, ch. 112, § 1412, in pertinent substance, provides:

'When any claim is transferred for trial, it shall not be necessary for the personal representative to plead any matter by way of answer, except a set-off or counter-claim, * * *. * * * the sufficiency of the statement of the claim, * * * may be tested by demurrer, * * *.' (Emphasis supplied).

The above referred to Rule 1-12B, as amended effective September 1, 1958, states, in material and pertinent part, that:

'In any action except criminal no change of judge * * * shall be granted except within the time herein provided. Any such application for change of judge * * * shall be filed not later than ten (10) days after the issues are first closed on the merits, or if the issues are closed without answer by operation of law, * * * not later than ten (10) days after the party has knowledge the cause is ready to be set for trial. Provided, that in the event an application for a change * * * from the county is granted within said ten (10) day period, a request for change of judge * * * may be made by a party still entitled thereto within ten (10) days after * * * the moving party has knowledge the cause has reached the receiving county * * *.'

As said Rule 1-12B, as amended, was not in effect on August 15, 1958 when the venued cause reached and was received by the Warrick Circuit Court, in the County of Warrick, Indiana, the proviso clause of said rule is without application to the question here presented.

It must be observed that said § 7-812, Burns' 1953 Replacement, does not bar the personal representative from pleading by way of answer. It simply states that it 'shall not be necessary' for the personal representative to answer. The personal representative is expressly given the right to test the claim by demurrer. It would seem, then, by the wording of the statute, that the time of the closing of the issues 'on the merits' depends upon the steps in pleading taken by the parties in each particular case. It is apparent that, under the particular provisions of said statute, no general rule as to when the 'issues are first closed on the merits' can be laid down in cases of claims against an estate. It is apparent, also, that under said section of the statute, the issues in such cases cannot be considered closed on the merits 'without answer by operation of law' until the right given by the act to the personal representative to challenge the sufficiency of the claim by demurrer has been, in some way, concluded. However, it would be unwise, unjustified, and probably only dicta, in...