*1 285 clearly brought dence. The fact of the sale out trial court and was available to the trial court as factor to be judging weight credibility given considered in to be testimony. position are We not to substitute our opinion for that passing, of the trial In court. we further appellant note Eelick, that the Michael as shown testimony concerning his own the value appro- priated, upon was not based and did very not consider the parcel which appellee’s he now contends the witnesses should have considered.
Judgment affirmed.
Hunter, C.J., DeBruler, JJ., Givan and J., Jackson, concur. concurs result. Reported in N. E. 2d 845.
Note. — Young ex rel. Products,
State Metal Inc. v. 5,No. et al. rehearing [No. 969S204. Filed June 1970. No filed.] *2 Crumpacker, Reed, Abraham- Kenneth D. Harold Owen W. Crumpacker Hammond, son, Abrahamson, relator. & of for Bomberger, Friedrich, Tweedle & O’Connor, William J. George Vann, Vann, Barce, & O’Connor, Hammond, Barce of respon- Rensselaer, Kentland, Dumas, Thomas B. of of dents. original
Givan, J. This is an action wherein relator the petition prohibition filed its for writ of mandate and in petition Court. Pursuant to said this Court an alterna- issued prohibition, tive writ of mandate and writ of which omitting signature, caption writ, and reads as follows: “Comes now the above-entitled cause and Relator having presented said Relator verified Petition for a Writ Mandate filed and in this Court Prohibition of and against words Respondents, being said verified Petition figures (here insert), follows, and as to-wit: and having petition seen and examined said and duly premises, advised in the finds an that Alternative Writ Temporary of Mandate issue and ofWrit Prohibition should prayed petition. as said THEREFORE, CONSIDERED, “IT IS ORDERED AND ADJUDGED BY THE COURT an Alternative Writ of Mandate be issued the Clerk of this Court command- ing the Lake Court Room No. and the Honor- Judge Jasper Richards, thereof, able James J. as and the Wright, Court, Circuit and Honorable Robert B. Judge thereof to: “(1) plaintiff the Motion Grant below to strike and Respondent’s expunge purporting approve Order to Company which Culvert National below of defendant bond Exhibit 55-57 of appears at R.. expunge strike and to motion herein referred which order petition and verified ‘A’ to the to petition. verified to said Exhibit ‘A’ at R. appears 54-A “ plaintiff below the motion (2) Grant and sustain prohibit additional and to expunge prior orders strike said motion jurisdiction which excess of for want or orders verified ‘A’ Exhibit appears at R. 68-74 of herein. supplemental “(3) motion Grant and sustain the prohibit ad- expunge prior and to
plaintiff below orders for want or excess of orders ditional ‘A’ to appears of Exhibit the verified at R. 119-129 motion petition herein. “ expunge (4) the record the various To from strike strike aforementioned motions to referred orders expunge. “ County, Ordering Indiana, (5) of Lake the Sheriff complaint possession described retake below and deliver same onto from defendants below plaintiff pursuant below *3 petition ‘A’ at R. Exhibit verified appearing 57-59 of to herein, all in with a cause commenced connection 5, Hammond, Indiana, Court, en- Superior Room No. Lake Products, corporation, Young Inc., plaintiff a Metal titled corpo- Company, George and National Culvert Michels vs. so, or, ration, 569-452 on failure do defendants Cause No. showing any Respondents their file return reason why perma- not in fact this writ should be made in law or day October, 6th nent on or before the “IT IS FURTHER ORDERED that the Lake Sheriffs County, Indiana, Jasper County, Indiana, and they and be hereby are said writ return to this authorized and directed to make due service upon Respondents and such service make due It is Court. further ordered that the Clerk copy petition of this Court mail a and of said with all exhibits support brief filed in Respondent thereof to the Superior Lake Court Room No. and the Honorable James Judge Richards, thereof, and opposing J. in the tional O’Connor, certified also party to the giving George case writ, rise to the Michels and Na- Company, attorney Culvert or their William J. Avenue, Hammond, 5217 Hohman Indiana, mail, receipt requested. return “IT CONSIDERED, IS FURTHER ORDERED, AD- AND BY JUDGED DECREED THIS COURT that hereby di- Respondents and they are commanded be and from this Court rected to order of refrain until further any all proceeding matters exercising further or Products, Young pertaining Metal the cause of Company George
Inc. Michels and Culvert vs. National of said records commenced as 569-452 particularly Cause No. on following mat- Lake Court and ters, the time purporting extend entering for defendants below From orders to-wit: tender or to file allowed provisions of present Burns’ Indiana refrain from undertaking pursuant to the written Annotated, Statutes Section approve disapprove written purporting or following ap- undertakings presented by defendants proval by Indiana, under- County, the Sheriff of Products, taking which Young Inc. presented Metal undertaking appears at of Exhibit R. 57-59 written ‘A’ petition to the herein. verified “IT FURTHER Respondent IS ORDERED that the show cause day October, 1969, why on or before the 6th permanent. writ should not be made “IT FURTHER IS ORDERED that the of Lake Sheriffs County, Indiana, Jasper County, Indiana, they be and hereby are said writ authorized and directed to make due service of upon Respondents and of said service make due return to this Court. “IT IS FURTHER ORDERED that the Clerk of this copy Court mail a of said with all exhibits and the support brief filed in thereof Respondent to the Lake Su- perior Court, Room 5No. and Honorable Richards, James J. Judge thereof, Jasper and the Circuit Court and Honorable Wright, Judge Robert B. party thereof, and also opposing giving in the case writ, rise to the George Michels and Company, National Culvert or its and their attorney, Wil- O’Connor, liam J. 5217 Hohman Avenue, Hammond, Indi- ana, by mail, certified receipt requested. return “ALL OF WHICH ORDERED, IS ADJUDGED AND DECREED of the Supreme Court Indiana, this 8th September, 1969.” n *4 day On the 30th of September, 1969, respondents filed their verified return to the alternative writ. leading original facts
The to this action are as follows: day May, On the 15th of 1969, relator, plaintiff below, filed complaint ejectment and affidavit for pos- immediate respondent in the of real estate session plaintiffs fixed amount of bond was that date the No. 5. On pos- seize immediate $40,000. The sheriff was ordered to at session. peti- day May, defendants filed 24th
On the to reduce bond. tion day May, 1969, bond the court reduced the the 29th
On gave $20,000 until June 3 within which the defendants to file bond. day June, 1969, the 2nd the defendant National
On Cul- Company, Inc., $20,000. vert filed its bond in sum of and ordered the sheriff approved the bond to return he had to the defendants. whatever day June, the 5th relator filed a On motion to expunge purporting the court order approve strike Company’s stated, Culvert bond. The the National motion among things, day that relator had on that pos- other filed a day sheriff’s office. On the same session bond the de- “* * * expunge filed a motion to fendants from the record plaintiff the sheriff to return herein and to order herein * * date *.” the bond filed this granted the relator’s expunge The court motion to filing approval of the court’s bond the defendant Company, Inc., Culvert as of day June, National the 2nd action on and deferred the defendant’s motion to return permit plaintiff’s for 24 hours to defendants to obtain gave approval of a bond the Sheriff. He the defendants P.M., until June 3:00 o’clock June, 6th
On the defendants filed their ground extension of time to file a motion for bond on the county attorney was not available and the sheriff would approve bond until he had county not the advice of the attorney. continued the cause until 2:00 Monday,
The court P.M. on *5 approval June and extended the time of for the bond hearing a to after on said date. day June, 1969,
On the 9th of filed a bond defendants sheriff, approved with date, which was on that and also relator-plaintiff’s complaint. filed their answer to On the same expunge prior date relator filed its motion to and to orders prohibit jurisdiction, additional orders for of want or excess by which motion was denied on June day June, the 16th On of defendants filed a demand change jury for a trial and a of motion for venue from county granted. which was day June, 1969, On the 17th supple- of the relator filed a expunge prior prohibit mental motion to orders and to addi- jurisdiction, tional for of orders want motion granted denied. On the same date the court defendants’ motion 5, 1969, expunge made on June the bond filed the relator and ordered sheriff to return the same to the relator. day June,
On the 18th the cause was venued Jasper Circuit Court. day August
On the 15th relator filed petition its for writ prohibition, pursuant mandate and 2-35, Rule with the Supreme Court Administrator. day
On the August, 1969, 20th relator filed petition a rulings to reconsider the court’s Jasper Circuit Court. September, On the 8th 1969, as out, above set this Court issued its alternative writ of mandate and prohibition. writ of respondents following make the concerning contentions original
this action: A) Requirements The Jurisdictional of Rule 2-35 of the Supreme
Rules of The Court have not been fulfilled Relator in that Relator set failed to out thereto, or make exhibits pleadings, orders and pertaining Jasper Circuit entries original action. subject of this matter for taken this contention is well do not believe that We required Rule under our then reason that the relator was administrator’s office papers his with the court file filing hearing any or the formal prior on writ Following filing court administra paper. hearing Monday on the tor rule is to fix under the *6 such less than one week from shall not be which pre filing. comply made his this rule the relator To August 15, filing liminary on with the court administrator filing petition to the of his was five before complained Jasper action in the Circuit Court. The reconsider already accomplished the Lake by been had the relator change prior Under our to the venue. Superior Court receiving change law, court receives the case of venue Judge rulings. including Eby, rel. Karsch v. prior ex all State 2d (1941), N. E. 218 Ind. ground has for obtain think that relator who do not
We against prohibition a trial court ing a mandate and writ of obtaining simply delayed his because relief be should change party. opposing At asked of venue is this court’s ad papers were filed with the time pleading Jasper Circuit Court ministrator, there was no However, to included in the record. have been which could subsequent knowledge pleading would extent that supplied respon in this cause such has been be useful attached thereto as exhibits. in their return and dents point Respondents’ is as second follows: B) Respondents’, Superior Court, As Room No. Richards, Judge thereof, Honorable James J. Judge longer any jurisdiction no
said Court have June, 1969, the cause on the 18th because Jasper to the venued Circuit Court. utility dissolving no see writ as to Lake
We change Superior Court, No. 5. It true that because of the is jurisdiction venue cause lies with now However, origi Jasper Circuit Court. this cause nated in the Lake It is that Court. court’s seeking- remedy. in this cause from is action which relator We type practice feel that the better in this of situation is to against original issue the writ court and the venue court question in order that no as to there be what is ac complished by lang previously the writ. This Court has used uage indicating change in a of venue situation the re ceiving acquires subject “co matter with” the court from extensive which the cause was removed. Eby, supra. State ex Judge, rel. Karsch v. matters stated writ heretofore issued apply
and in this will to both courts.
Respondents further contend:
C) adequate an remedy The Relator has law, at has failed emergency, an fully
to show protected is bond of defendants below. *7 parties
The started out in this cause an action for the possession immediate say real estate. We cannot emergency such a situation no remedy ap- exists or that a peal party relief, avails the of the needed if the relator is in possession. fact entitled to the immediate Stat., Under Repl., Burns Ind. 1968 3-1306 the defendants’ § right possession to retain of the real estate was conditioned
upon undertaking the execution a payable of written the approved by to to be the sheriff within days five after service of notice. In this case the de perform fendant failed to the imposed condition the under judge jurisdiction statute. The trial exceeded his in the case purporting statutory to extend day period. the five haveWe long recognized precedent that conditions part are
293 dispensed with. or otherwise be waived right cannot itself and App. N. E. 2d Crady (1963), 185 135 Ind. Donnella v. Peoples 499; Kuzma v. E. 2d 191 N. denied transfer 138; E. App. 176 N. 2d Trust, (1961), 132 Ind. etc. App. 390, (1959), 130 Ind. etc. v. Smith Lewis Est. of 457. N. E. 2d remedy by a legislature afforded statute the has
Where in connection prescribed procedure to be followed strictly remedy, procedure must be then Duffecy (1952), 230 Ind. Ballman v. followed. Gary Taxpayers’ Assn., 646; ex rel. E. 2d State
102 N. (1947), et Ind. al. Inc. v.
N. E. 2d without case at bar the court In the extending by the time the statute for effect rewrite possession. retain The post in order to defendants to bond right post gained statute under the relator had thus possession. required feel that bond obtain We emergency an very nature demonstrates of the case for need relief.
Respondents further claim:
D) question raised Relator’s Verified Petition of authority pro- trial to extend the time parties eject-
vided in Burns Ind. Stat. § possession question ment bonds actions file is moot very provisions failed to meet because Relator against asks which it this Court to enforce statute Respondents; and defendants below are entitled to interpreted under that statute Relator. proposition set forth re find no merit We spondents. true that the defendants did not file their It is they after were within five served with equally true that the relator did not file It is
notice. *8 required by five thereafter as its bond within 294 Stat., Repl., Ind. 1968 However,
Burns 3-1306. it should be § pursuant noted as set authority above out that under Stat., Repl., Burns Ind. 1968 2-4727 entertained § hearing during time, reduction period of the bond power which was within court’s and which had the effect staying parties the time within which the could file the $20,000 bond. The May new bond was set the court on 29, purportedly 1969. The bond filed National Culvert 2, Company, 1969, Inc. on June was found the trial court faulty. to be The relator filed its written bond with the sheriff June, 1969, with the statutes accordance on the 5th provided. well within the time foregoing For the reasons alternative writ of mandate prohibition writ heretofore issued is made permanent. C.J., concur;
Hunter, Arterburn, J., J., DeBruler, dis- opinion; Jackson, J., opinion. sents without dissents with
Dissenting Opinion Jackson, am J. I unable to concur in majority herein and dissent thereto. appears
It this action originally by was started the relator ejectment against as an George action in his tenants Michels Company. and National Culvert In time, due within the statute, relator filed its affidavit for immediate possession, pursuant 1, 254, p. 741, to Acts being ch. 3-1301 et § § seq., Repl. Burns’ 1968 thereupon The court (presumably pursuant to Acts p. ch. 779 2-4727 § § Repl.) Burns’ 1968 fixed the amount of the bond or under taking $40,000.00. at Presumably, thereupon the clerk issued county an order to the sheriff directing the sheriff to seize the described in complaint pursuant and affidavit to Acts (or Burns’) § § obeyed well as summons. We assume sheriff the law as embodied in the Act or 3-1305. § § *9 present undertaking to their written
Defendants failed to (5) days posting five after the service or the sheriff within person the defendant nor some of notice. Neither his days behalf, posting after within five the service or of such undertaking payable plaintiff, the notice executed a written surety sheriff, approved sufficient to be to the with the safely keep preserve effect that the defendant will and any way injured property, that the same will be in not or provided by 1927, 3-1306, damaged, 3, Acts or Burns’ § § Repl. give Upon failure of defendants to the written undertaking relator tendered its written to the sheriff surety, undertaking, with which bond was received the sheriff, by him, surety approved. filed examined as to and ejectment brought Relator’s brief shows the action by Young Inc., against Products, Corporation, below Metal George co-defendants and Michels National Com- Culvert pany, Inc. interpret law, I plain wording
As the under the of the statute, defendants, person if the or some in their behalf give undertaking required failed the bond or within five 21, days May plaintiff after then the had five within such bond approval file and such event on Sheriff, the bond the the required Sheriff was to deliver possession plaintiff. of the If however the plaintiff file its failed to bond within succeeding five days, (5) i.e., 3, 1969, June before then the defendant would normally possession retain of the real estate until the outcome the suit was determined on the merits. like, at while
In case bar it looks I greatly while dislike the maneuvers of the court and defendants’ counsel, that May with the service the order on 1969, time began opinion I to run. am the that when the court on May 15, possession $40,000.00 fixed bond for at and the clerk issued summons the order to the sheriff possession, to seize immediate the court had acted under longer Act, jurisdiction 2-4727 Burns’ and no had § regard bond, time reduction there- extension of or granted of, all discretion and but exercised under the 1947 Act. then,
That the case had to before June proper file the satisfaction of sheriff. Failing so, I am the defendants are to do at least the entitled to hold until outcome gives Act case Bear in mind the 1947 on the merits. only power penalty” to fix “the of the bond such may adequate, in his discretion but in no amount as he deem dollars, power granted is event less than one hundred specified by only such Even under in certain instances Act. *10 power approve Act court did not have the the 1947 undertaking, duty remains the sheriff. or that with my proper opinion Plaintiff should have tendered 3, $40,000.00 prior sum bond to the sheriff June not, now, 1969, failing do, it and is not entitled so was ejectment possession of the described to the compliance my action, by Act, with the 1927 hence sought to the relief in the instant action. is not entitled However, Act, should the court determine that the 1947 215, 1, p. 2-4727, ch. 779 Burns’ did not in fact § § operate repeal 1927, aas Acts ch. then the § Judge respondent Superior Court, action of of the Lake Eoom nullity was and is a and in excess of his because supra, placed duty fixing Acts the amount of undertaking, approving same, the bond or on the sheriff, perform duty. Eegardless and no one else could fact, record required of that shows service of the notice May 21, defendant and order on on 1969. No bond or under- taking filed or on behalf of defendants within the days Plaintiff five allowed. then had five within which bond. The record to file its shows first tendered undertaking 5,1969. on June its bond or with the effect of the In connection 1947 Act as it relates Act, am the 1927 I inclined to the belief that it does not operate repealer as of the Act it does not § purport repeal any Act, other and the title of the Act reads providing liability “AN ACT entitled ‘An Act for limitation of ” open undertakings.’ any event, my opinion, on In it does not affect the matter now before us. rights key turned, parties filing
The of the after the possession, of the affidavit for immediate and the issuance of provided by the clerk’s order 3-1305 Burns’ on strict com- § “* * * pliance (5) days Burns’ within five §3-1306 notice,” posting after service of such or etc. seq.) et providing 1927 Act for the (§ immediate specific special of real is a estate Relief statute. purview act,
thereunder must be had within the
of the
or not
my opinion
plaintiff-relator
brought
at all. In
has not
him-
act,
purview
self within the
has suffered laches and is
sought
erroneously
therefore not entitled to the relief
and now
granted by
this Court. The
writs heretofore issued
permanent
Court should be dissolved and the
writs
denied.
Reported in
Note. — Hauger v.
Von State Indiana. 169S4. Filed June rehearing 1970. No [No. filed.]