White v. Sloss, 30589

• Decision Date: 07 May 1964
• Docket Number: No. 30589,30589
• Citation: 245 Ind. 289,198 N.E.2d 219
• Parties: Lizzie Lyles WHITE, Estate of John J. White, Deceased, Carl Hardiman, as Administrator of the Estate of John J. White, Deceased, Appellants, v. Alice SLOSS, Appellee.
• Court: Indiana Supreme Court

Page 219

198 N.E.2d 219

245 Ind. 289

Lizzie Lyles WHITE, Estate of John J. White, Deceased, Carl Hardiman, as Administrator of the Estate of John J. White, Deceased, Appellants, v. Alice SLOSS, Appellee.

No. 30589.

Supreme Court of Indiana.

May 7, 1964.

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

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

ACHOR, Judge.

This case comes to us on petition to transfer from the Appellate Court under Rule 2-23 of this court. See White v. Sloss (Ind.App.1963), 192 N.E.2d 482.

The facts in this case are as follows: Appellee filed a claim for personal services against the estate of John J. White, deceased, in the Gibson Circuit Court on March 22, 1958. On July 22, 1958, claimant filed a request for trial by jury and a motion for change of venue from the county. The action was thereupon ordered venued to the Warrick Circuit Court. The latter court received and docketed the cause on August 15, 1958. On September 18, 1958, the appellants filed a motion to make the claim more specific. The motion was overruled 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. On the same day the appellants filed their motion for change of judge. Appellee filed her objections to the motion, on the ground that the issues in the cause had been closed by operation of law, as provided in Rule 1-12B of this court, more than 10 days prior to the filing of said motion. The court did not rule upon the demurrer but denied said motion for change of judge. Thereafter the cause was submitted to trial by jury and resulted in a verdict for appellee. Appellants' motion for new trial, which was overruled by the court, specified, among other grounds, error in the denial of the motion for change of judge.

A decision upon this issue necessarily involves, and is made to rest upon the construction of Rule 1-12B, supra, and Acts of 1953, ch. 112, § 1412, p. 295, being § 7-812, Burns' 1953 Repl., as applied to the facts in this case. The pertinent part of Rule 1-12B is as follows:

'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. * * *' [Emphasis added.]

The pertinent part of § 7-812, supra, is as follows:

'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 setoff or counter-claim, * * * may be tested by demurrer, * * *.' [Emphasis added.]

Because of the intemperate, vituperous and scurrilous language which appears in appellants' brief, ¹ without apparent justification thereof, ² we would be warranted in striking the briefs from the files. Pittsburgh, etc., R. Co. v. Muncie, etc. Traction Co. (1906), 166 Ind. 466, 77 N.E. 941; Shirk v. Hupp (1906), 167 Ind. 509, 78 N.E. 242, 79 N.E. 490; Vivian Collieries Co. v. Cahall (1916), 184 Ind. 473, 110 N.E. 672.

However, because of the uncertainty which exists as to the construction of Rule 1-12B, supra, particularly as to the closing of issues by operation of law, the basis upon which the trial court denied the appellants' motion for change of judge, we have decided to consider this appeal solely upon that issue.

Appellant asserts that the trial court erred in overruling his motion for change of judge for the reason that although § 7-812, supra, expressly provides that, after transfer of a claim to the issue and trial docket, 'it shall not be necessary for the personal representative to plead any matter by way of answer,' the issues in such cases cannot be considered 'closed without answer by operation of law,' under Rule 1-12B, until the right, expressly given by § 7-812, to the personal representative to challenge the sufficiency of the claim by demurrer has been, in some way, concluded.

The above statement necessarily implies that, under the circumstances here present, the issues are not closed 'by operation of law,' until some record has been made in the case with regard to the right of the personal representative to challenge the sufficiency of the claim by demurrer. In the light of the prior decisions of this court, we feel we must take a contrary position upon this issue. State ex rel. Harper v. Wheatley (1963), Ind., 191 N.E.2d 708; State, ex rel. Kielpikowski v. Murray, Judge (1959), 240 Ind. 222, 163 N.E.2d 597; State, ex rel. Boger v. Daviess Circuit Court (1959), 240 Ind. 198, 163 N.E.2d 250; State ex rel. Blood et al. v. Gibson Circuit Ct. (1958), 239 Ind. 394, 157 N.E.2d 475; State, ex rel. Janelle v. Lake Sup. Ct., et al. (1957), 237 Ind. 3, 143 N.E.2d 288.

We judicially know that one of the primary purposes for the enactment of the probate code §§ 6-101 to 8-218, Burns' 1953 Repl. [1963 Supp., amendments], was to expedite the procedure in the administration of estates. The fact that the legislature specifically intended to expedite the procedure relative to the disposition of claims against estates is apparent from the fact that the pertinent section act provides:

'* * * [I]t shall not be necessary for the personal representative to plead any matter by way of answer * * *.' § 7-812, supra.

And, although the statute also provides that other pleadings may be filed and the claim 'may be tested by demurrer,' it would seem necessarily to follow that the legislature intended that such pleadings, if filed, be filed expeditiously. See State ex rel. Crawford v. Howard Circuit Court (1962), 242 Ind. 593, 181 N.E.2d 18.

Rule 1-12B, supra, was amended to contain the above referred to provisions on May 15, 1958, and became effective September 1, 1958. In this case the claim was filed on March 22, 1958, and was entered upon the issue and trial docket on or before July 22, 1958. Thus appellants had five months after the filing, and 40 days after the cause was transferred to the issue and trial docket before the...