*1 appellant’s We have examined other contentions and they have equally determined that are merit. without Judgment affirmed.
Arterburn, Bobbitt, Landis, JJ., Emmert and concur. Reported in 140 2d N. Note. — Rooney, Indiana ex rel. Bretsch v. Lake Judge. Court, Kaul,
Circuit 29,479. February 11, [No. Filed 1957.] *2 Darlington, Fowler, Jay E. Isham and William S. Hammond, for relators. Terry, Stephen Stipher, Daniels, W. Joseph Karl J. J. Friedlich, of Jr., Indianapolis Herbert A. Chi- and cago, Illinois, respondents. original action for an alter- an J. This is
Emmert, require the Lake Circuit of mandamus to native writ testify appear and witnesses to to certain order Court Replace- pursuant by deposition to denying re- prior ment, order to vacate its and writ, the verified and the alternative We issued lief. make the justification for refusal to pleads return order. comply the return fails contends
Relator’s brief incorporate as or have fails to 2-35 in that it with Rule pleadings, copies orders certified exhibits thereto subject the matter pertaining to entries and Court, Civil pending in the Warren Circuit action Rooney City of v. Andrew entitled No. Cause that, therefore, al., return Chicago, the et and East (cid:127) insufficient. (1954), Court rel. Wall v. Cass Circuit ex
In State not noted we do E. we 192, 117 N. 2d 233 Ind. hearing original actions, but conduct evidence, the pleadings constitute verified the proved as proceedings must that court and copies of order by no certified Rule 2-35. Since required incor were the Circuit Court of Warren book entries return, pre attached as exhibits to porated in or nothing by sents as to action the Warren Circuit Court.1
However, petition does have as an exhibit a transcript proceedings of the court before the Lake Court, including exceptions,
Circuit a bill of from this evidence we are enabled decide presented. issue When we issued alternative petition prima writ we did decide the amade had facie County Verbarg case. State ex rel. Joint Park Board v. 916; 91 N. E. 2d rel. State ex Gary Rys., Roszkowski, Judge (1953), Inc. v. However, pro N. 2d 746. this rule does not
hibit issuing us from a reconsideration of our order writ. State ex rel. v. Knox Woods C. C.
552, 121 N. E. improvidently 2d 880. If the writ was issued, it should now be revoked. petitioners’ transcript,
From it was admitted counsel for Rooney relators that City the cause of *3 Chicago, East being et al. was tried in the Warren plaintiff sought Circuit Court when the to take the depositions persons, of eleven some defendants and parties, some not all of whom were residents of Lake County. petitioner The any failed to show order of the Warren taking Circuit Court for the deposi of these tions, upon and we hold this burden was him. plaintiff Rooney
Relators contend the was not re quired to obtain a court §2-1505, order under Replacement,2 Burns’ though 1946 even the trial supplemental plead 1. Two copies returns did certified of the showing order book entries of the Warren Circuit Court a subse- quent finding judgment Rooney and the defendants in City Chicago al., overruling East et No. and the of a of trial, subsequent motion for new material but we do not deem these records original to the decision of this action. actions, may taking deposi- “In all the court order the of tions, parties, for that tion necessary rights whenever deemed to determine the expedite causes; may, necessary or to the trial of and if purpose, order a continuance until the next term.” Sec- 2-1505, Replacement (Spec. Sess.), Burns’ 1946 1881 [Acts 38, §291, p. eh. 240]. progress, right was in deposi but as of could take the §2-1506, tions the same as before trial under Replacement. agree not We do with this construction of agree the two sections. If we were with relators’ position, §2-1505, Replacement, then Burns’ 1946 would surplusage. be useless and and Clauses Replacement,3 Burns’ 1946 indicate is Any be taken other would before trial. construction right permit party a as of to dictate to the court when adjourn, present the trial should or conflict serious trying the main cause between the court seeking court wit and the to enforce the attendance of taking orderly pro depositions. nesses for the The legal sound dis cedure of the trial should be left to the trying cause, if dis cretion of the court be on cretion be abused can reviewed is now vacated. The alternative writ heretofore issued Achor, J., Bobbitt, JJ., concur. Arterburn and C. Landis, in the result with J. concurs opinion. may party, actions, depositions either be taken 3. “In all summons, time, any of- in or term time after service vacation They may used in the trial
without therefor. order court any action, following issues, in cases: county, or not reside in the does “First. Where the witness held, county adjoining one, trial is to in which in a or is from the state. absent officer, county deponent or a state is a or “Fourth. When attorney-at-law, physician, judge, practicing and the trial or or a deponent any county reside. does not in which the had in is to be cases, foregoing the witness the attendance of In either of the enforced. can not be taking any given fixing the time of notice “Fifth. When *4 session, may, time, if in day court deposition in on a term by given vacation, the adverse judge on notice in thereof or the party motion, hearing fix place another of the time of motion, hearing court, taking, of such day on the and the for such taking, no shall be may appeal.” from which there such fix time for Replace- 2-1506, 1946 Section [Italics added.] 38, §292, p. Sess.), (Spec. 240]. ch. 1881 ment [Acts
349 (Concurring Opinion) am unable J. Landis, —I agree opinion portion which indicates with may party an order of court take that a not without The statute deposition commenced. the trial has after unambiguous language states: depositions may actions, taken “In be _ any time, time party, in vacation or term either after service summons, court ivithout order supplied.) (Emphasis therefor.”1 Moreover, this court held in Wehrs v. The State (1892), 157, 162, 779, 781, 132 Ind. 31 N. E. “.. .whether taking depositions party a cause for is for the exists who just necessity seeks to take them he as determines the subpoenaing . . witnesses. .” Kark v. See also: Greyhound (1949), App. 303, Central Lines 85 277, may Depositions N. E. 2d to the same effect. also pending be taken after trial when a on cause is Long, (1890), Executor v. Straus et al.
However, taking I do not at the believe attendance properly of a can enforced in a §2-1509, Repl., court under Burns’ [Acts Sess.), (Spec. §295, p. 240], ch. when en- orderly procedure forcement conflict would with pro- of the trial the main action then in which was gress.2 facilitate the in- This statute was intended to causes, expedite troduction evidence and trial of in such a manner as to and it should not construed Repl. [Acts Burns’ Indiana Statutes p. (Spec. Sess.), 38, §292, ch. 240] 2. See: 17, 19, Marehant v. Olson 110 N. following: to the' effect: subject-matter acquires of a a court “When power disposition, to final to the exclusion of cause its authority rule continues jurisdiction. by a of coordinate Such to interfere court expense. Boos v. confusion and needless avoids *5 disruptive of the trial of the main action an R independent proceeding espond in a court.3 accordingly very properly ent court not see fit here did jurisdiction given by to exercise the was statute deposition. enforce the attendance of witnesses at the touching orderly are, Matters conduct of the trial course, trying within sound discretion of the court the cause whose action is reviewable on I opinion therefore concur in the result of the the alternative requiring respondent writ of mandamus testify court to order witnesses vacated. Reported in 140 N. E. 2d 217.
Note. —
Heglin v.
Indiana.
29,447.
February 11,
Filed
[No.
1957.]
391,
[sic, 401];
Gregory