*1 Roy Wilcox, et al. v. companion This action is case al., Liberty, Indiana, North et appeal Town No. judgment Joseph Superior Court. The rendered from the St. judgment predicated the instant case was Joseph Superior St. Court. judgment Joseph Superior Court of the St.
Since the summary rehearing, affirmed Court on judgment appealed from herein is therefore now affirmed. Arterburn, Mote, Hunter concur.
Lewis, JJ. C. J. and Rehearing. Opinion On Rehearing Reported Reported 2d 430. in 230 N. E.
Note. —
in
[No. 667S13. April 5, 1968.] *2 Woolbert, of Ander- Spencer, Indianapolis, Al Frank E. Shelbyville, George Glass, for relators. son, and Elwood, Lawrence Sharp, Riley Paul E. Schrenker M. Anderson, respondents. Booram, original an alternative action for Per Curiam. This is an grant respondent court to comрel mandate to writ of writ was county. alternative show cause. order issued to by copies relators of the court records The certified complaint Court was in Madison Circuit disclose that County against Committee Madison filed March Corporations, Reorganization and the several of School General; Attorney by J. G. thereof, represented members Commission, represented alsо Kohlmeyer, Director of the State Judge Attorney General; T. Smith as and Hon. Carl of the Madison sequence steps
We have in set forth taken: relators-plaintiffs supplemental complaint filed а on July 2, adding the names of defendants Charles B. Parker, Noble, Jr., Mark Harting, Kenneth Wilfred Shaw Butcher; Judge April 22, 1965, Lowell M. on the said disqualified Madison Circuit Court himself as a in the following appointment action and therеafter of Hon. Frank court, relators-plaintiffs Fisher as said action took a from of Madi- Henry County; son to answer was the defendants September 1, 1966; 14, 1966, on December a motion for of venue was filеd the named de- additional supplemental complaint fendants Circuit Court; supplemental on March the said defendants moved to dismiss cause of action as over to themselves objeсtion relators-plaintiffs; April 10, plaintiffs-relators opposition filed a written memorandum in *3 dismiss; April 21, 1967, the motion to plantiffs-relators on change filed a for judge; motion May of venue from the on 1, 1967, the defеndants filed a motion to strike from the files reject plaintiffs’ request for of venue from the judge; May 5, 1967, plaintiffs-relators on objections filed defendants’ motion to strike reject plain- files and request tiffs’ fоr judge; venue from the respondent day same request the ordered plain- judge rejected tiffs-relators stricken from the records and ordered the action to be dis- missed as to defendants Parkеr, Charles B. Noble, Mark Jr., Harting, Kenneth Wilfred Shaw and Lowell M. Butcher supplemental complaint; May in 17,1967, named plain- expunge entry May 5, tiffs filed 1967, a motion to which was overruled day. said court on the same is It rеlators contention that presented issue granting request is the of a for a of venue from the request which was filed relators-plaintiffs in the Trial only request Court as their first and
208 closed had not been when thе issues from venue cause.
in said respondents maintain that the 10 filed than it was more denied because of venue to Rule 2-85 and pursuant to be noted that
It is which pertinent part thereof states: prоceeding in to a relates If relief “. . . copies pleadings, orders and court, of all certified inferior subject be set pertaining should out to the matter entries in the thereto, petition madе exhibits . . .” copies in no certified of the answers the defendants that original commenced action Madison were original although action, in this it indicated in this court being “A,” transcript pleading Exhibit relators’ Septem- entries, had papers and that an answer Craig, the defendant James 1,1966 ber et al.
Furthermore, it is the of this law state that unlike an pleading, supplemental pleading supersede amended does not supplement, pleading which it seeks to but both single pleading. as a This is stand true because the pleading supplemental relates back to the original part Montgomery to become a so as it. 660, 251; 161 (1928), Cincinnati, 199 N. Ind. E. H. Crum & (1915), 556, 183 McCullom D. R. Co. v. N. E. 206 632, 521; 64, 245 U. S. L. affirmed 38 S. Ct. Ed. Muncie & Mining v. Citizens’ & Traction Co. Gas Oil Portland Co. 65; Big Creek Stone Co. v. rehearing (1896), 144 Ind. N. E. Seward *4 5; Pouder 205, (1892), v. Tate 43 N. E. 132 Ind. 144 Ind. 880; Krug 1; (1884), Davis v. 95 Ind. 327, Kimble 276; Morey (1883), 450; Ball 90 (1883), 92 Ind. Ind. v. Seal Manly 462; (1873), 42 Larch Ind. v. Holz Musselman v. 56, 101 Apр. E. 127. N.
209 supplemental complaint plaintiffs-relators The supersede sup did not which it plement. original complaint The answer filed to the brought issue on the matter the merits. filing venue, therefore, of the motion for a timely 1-12B of
was not under Rule this court. Superior Court, Roszkowski, State ex rel. Janelle v. Lake In 3, (1957), 288, 2d N. E. court held that an unverified motion for a of venue is proper 1-12B, in civil cases under Rule but it must be filed within the issues are first closed on the merits. forth,
For the reasons hereinabove set the writ im- was providently issued and the same is now vacated. ON
MEMORANDUM PETITION FOR REHEARING February 6, Curiam. On this court vacated Per entry denying rehearing January and vacated per opinion curiam as well the heretofore filed with the Clerk 29,1967. Court on November pointed relators out that the answer filed James Craig, al., et in effect an was answеr as Members of and Constituting County Reorgani- the Madison Committee for the Corporations any zation of School and did not include alleged Thus, other defendants who in effect had not answered. relators, motion for a their alleged timely was had since the issues not been closed of all answer defendants. therefore, reasoning, per opinion curiam November would then based on an еrror of fact was since it stated “That therein. an answer had been filed September 1, 1966, by Craig, defendant James et al.” This transcript was fact an error since the revealed that there Craig, answеr filed James et al. as Members of and Constituting the Madison Committee for the Re-
organization Corporations, of School and there were other including Bryce Pilot, Bottom, defendants Jean William E. Holmes, Biddle, Wilson, Dillon, Chester John J. Herbert Chambers, Moody Miller, and R. as William J. Preston L. Constituting of Commission for the Members the State Reorganization Indiana, Corporations of of School of the State Reorganization Corpora- Commission for the of School Kohlmeyer, Indiana, State of B. Director tions of the J. Reorganization Corp- of School the State Commission for the Smith, Indiana, and Hon. Carl as of the State of T. orations of the Madison however, supra correct, per opinion as to curiam plaintiffs- supplemental complaint filed its conclusion on the sup- relators, superseding to which it not plement. granted May 25, 1965,
On venue had been a plaintiff for a venue from Madison the motion of the County. Henry Henry to Circuit Court however, noted, December It is to be a motion pаrty-defendants for a was filed the named additional granted Henry County County. Court, Fayette Fayette Circuit granted changing duly January 5, 1967, On the order was given Fayette County, Indiana, and the were defendants changе. May 17, perfect On ten thereafter the said plaintiff for a of venue from the moved Judge, and motion was denied. issues, therefore, fully were not cause closed when the County. 1-12B, Indiana
reached Court Rule therefore, applicable paragraph is, to the case at This bar. reads as follows: further, granted “Provided event county
judge prescribed period, or within as stated county mаy request judge above, or be (10) days made still entitled thereto within ten moving qualified after the has or the has receiving county or knowledge cause reached has change.” perfect the failure to there has been a recently 1-12B(6) has interpretation Rule this Indiana case of State in the made court recent Superior Porter Court change is event a was held that
2d where it prеscribed county within had from the may made period, an additional *6 days the (10) after by party thereto, ten a still entitled within knowledge moving party has special judge qualified has or the receiving county has been or there the the cause has reached perfect change. failure to the a attorney improp
The for the relators in his memorandum erly (1962), 242 cites the of State Indiana v. Laxton case of holding authority case 2d 901 as a that as ten-day begins period have the to run after issues the closed. supra,
In State Laxton, Indiana v. the court stated: special judge “It was never a could make intended that making provision ineffective the 1-12B himself of Rule change a unavailable to receive for motion county days qualified. Where, the within ten after he had here, special judge as the resides in another circuit and does not make himself available to receive motions judge county or venue from the within ten days qualified, after has is he alternative for the within the mоtion, entitled to file his required by rule, presented time by with the clerk to again juris- special him to he resumes when diction in the case.” closing The issue in the Laxton was not case issues, judge. qualification special but on the purpose Change 1-12B of Rule of Venue is to reduce delays unnecessary occasioned the late object petitions which have as their real
postponement purpose or a trial. is avoidance of Its delay expedite cause or aid trials not to further dilatory language 1- practice. Court Rule clearly 12B had from states that in event a county period, prescribed or additional within judge may by a still be made thereto, days has entitled within ten knowledge qualified moving party the cause has has receiving county reached the or there has been failure change. perfect the began
In the case at bar the to run when the matter time Fayette County, had reached the Court in Circuit .December 1966. motion for within not the ten as hereinabove set forth. was, improvidently therefore,
The writ and the same issued is now vacated.
Hunter,
opinion.
J. dissents without
Reported
Rehearing
in
Dullen of Indiana. *7 February 30,619. 6, 1968. Rehearing Filed [No. April 6, 1968.]