Howard v. German , 138 Ind. App. 228 ( 1965 )

Bierly, C. J.

Appellee commenced this action for damages for personal injuries resulting from a collision at a street intersection in Anderson, Indiana, on July 14, 1961, at approximately 1:00 o’clock A.M. The collision involved a motorcycle driven by appellee, German, and an automobile operated by appellant, Earl Eugene Howard.

■ Upon the issues formed by appellee’s amended complaint and appellant’s answer, the jury returned a verdict for the appellee and against the appellant in the sum of Thirty-one Thousand Dollars ($31,000.00). Consistent judgment was entered thereon.

Appellant assigns error as follows:

“i.. That the. Court erred in denying appellant’s motion for change of venue from the county;

“2. That the court erred in denying appellant’s motion for a new trial.”

While appellant’s assignment of error No. 1 would not be a valid assignment of error under Supreme Court Rule 2-6, as amended and effective on September 1, 1960, appellant actually argued this assignment of error as a specification under his motion for new trial and it is, therefore available for review.

' -It is our presumption that the trial court committed reversible error, thus our review will be confined to the action of1 the trial' court in its ruling on appellant’s motion for change of venue from the county.

Supreme Court Rule 1-12B; effective September 1, 1958 to July 1, 1964, provided, in part:

“In all cases where the venue of a civil action may now be changed from the judge or the county, such a change shall be granted upon the filing of an unverified application or motion therefor ■ by a party or his attorneys: Provided, however, a party shall be entitled to only one change from the county and only one change from the judge.

■. . . Provided, that in event an application for a change v.,of judge or change from the county is granted within said ten (10) day period, a request for a change of judge or county 'may be made by a party still entitled thereto ivithin ten (10) days after the special judge has qualified or the . moving, party has knowledge the cause has reached the receiving county or there has been a failure to perfect the change.” (Our emphasis).

A summary of the proceedings in the trial court is as follows:

1. The issues were first closed on December 19, 1962.

2. Plaintiff-appellee filed his motion for change of judge on December 29, 1962.

3. The Special Judge assumed jurisdiction on January 12, 1963.

4. Defendant-appellant filed his motion for change of venue from the county on January 15, 1963.

5. Motion for change of venue from the county was granted on January 15, 1963, but the same was set aside on January 25, 1963, and a date was set for oral argument on the motion.

6. On March 12, 1963 appellant’s motion for change of venue from the county was overruled and the cause was set for trial.

Appellant argues that under the requirements of Rule 1-12B he had ten (10) days after the special judge had qualified within which to file his motion for change of venue from the county; and, further, that the ten (10) days limitation set forth in Rule 1-12B does not refer to ten (10) days after the issues are first closed.

Appellee takes the position “that said motion for change of venue from the county was not timely filed for the reason that it was filed on the 15th day of January, 1963, more than ten (10) days after the closing of the issues by the filing of the appellant’s answer on the 19th day of December, 1962. Thus, the ten-day period of time permitted by Rule 1-12B, Rules of the Supreme and Appellate Courts, had long since expired at the time of the filing of the motion for change of venue from the county.”

Appellee cites the case of State v. Laxton et al. (1962), 242 Ind. 331, 178 N. E. 2d 901, in support of his argument. However, we are of the opinion that the Laxton case, supra, supports the position of appellant and is controlling herein.

The Laxton case, supra, was an action by the State of Indiana to condemn certain land owned by the appellees. In this case, the trial court overruled appellees’ objections to the condemnation and appropriation of land and ordered the real estate condemned and, thereafter, appointed appraisers to assess the damages. On July 8, 1959, appellees filed, along with a motion to set aside the appointment and the award of the appraisers, and their exceptions to the appraisers’ award, a motion for change of judge. Their motion for change of judge was granted and the special judge qualified and assumed jurisdiction on October 17, 1959. However, on July 18, 1959 appellant filed its motion for a change of venue from the county and this motion was filed at a time when said motion could not be called to the attention of the court because there was no judge available to whom it could be presented. Subsequently, appellant’s motion was orally presented to the court and overruled on February 3, 1960. The appellees argued that the motion should have been filed within ten (10) days after the special judge qualified.

In reversing the action of the trial court in this case of Laxton, supra, our Supreme Court held:

“. . . It thus appears that the special judge was not available for the presentation of plaintiff-appellant’s motion for change of venue from the county within ten days after the special judge had qualified. It was never intended that a special judge could make ineffective the provision of Rule 1-12B by making himself unavailable to receive a motion for a change of venue from the county within ten days after he had qualified.

“Further, the rule states that ‘a request for change of judge or county may be made’ within ten days after the special judge has qualified (Our italics). We do not construe this rule to mean that such request shall be filed only within this ten day period and not sooner. . . . The ten day period allowed by the proviso herein was for the purpose of protecting the rights of the party still entitled to a change of venue from the judge or county by giving him the same period of time within which to file his motion for a change as that allowed the other party. . . .”

Upon the language of the Laxton case, supra, and the clear and unambiguous phraseology of Rule 1-12B, it is apparent that appellant had ten (10) days after the special judge qualified and assumed jurisdiction within which to file his motion for a change of venue from the county. Inasmuch as appellant’s motion was timely filed it should have been sustained and the action of the trial court in overruling the same was reversible error.

Judgment reversed.

Mote and Hunter, JJ., concur. Smith, J., concurs in result only.