*1 Thompson. Thompson Catherine v. Field Obelia Smith Clifford D. Smith. August 29, 1972.]
[No. 271S41. Filed *2 appellants, Shadel, Indianapolis, for David F. LSO of Colker, Sendak, Attorney General, Robert F. Theodore L. Attorney General, attorneys curiae. amicus Assistant Gary Landau, Soards, Bowen, Myers, L. Northam R. William Soards, City Indianapolis. Indianapolis, & of of questions appeals raise identical J. These two
DeBruler, right get the to divorces in about of of notice defendant this State on basis of to the serving they pay publication, the cost of unable to by publication. involved. summons are no issues of fact There sought appellant commence In an action еach case to petition trial presented divorce in the trial court and appellant judge permitting requesting an order of court “poor I.C. prosecute person” under her divorce action as 34-1-1-3, being requesting a 2-211, Burns and also filing including of of summons waiver fees cost (b). being pursuant 1971, 33-1-9-2, Burns to I.C. appellant each case the trial court determined was in fact unable to court costs and therefore entitled to proceed with her divorce pauperis, action in and further forma waived, filing determined that advance $25.00 fee be however, in each case the trial court trial refused to waive requirement filing paid that $21.00 be the clerk complaint effecting secure the sum- cost service of by publication. judges mons opinion The trial jurisdiction had authority publi- no to waive costs of cation. The result pre-payment refusal to waive publication prevent appellants cost was com- mencing litigating their actions and divorce. their claims for appealed. From these orders public importance Because of the issues raised appеals, this Court on its own motion ordered that City Indianapolis party appellee be made a the cases complied by filing and it has a motion to and brief dismiss *3 on the order, merits. Also in our we invited At- the Indiana torney General Attorney to file a brief as Amicus Curiae. The responded General resisting has merits, a brief on the appeal. Appellee amicus curiae their contend in briefs and appeals, the motions to dismiss the that the orders of the trial determining appellants were unable to refusing publishing costs but waive costs of “interlocutory judgmеnts” “final Summonses are not appeals may pursuant Rule orders” from which be taken argue appellants (4). They remedy AP also if original way byis at all it of an action in Court for extra ordinary by way appeal. case writ and the Smith us, timely appellant filed a motion to correct errors before refusing directed to the order waive costs of Thompson case, appellant summons. In the did not file errors, procedure motion to correct followed but instead interlocutory appeal appealable for an ordеr. hold We
269 sought cases in these orders, reviewed to be these (4), AP judgments purposes appeal final and Rule for the Thompson was procedure case and thus the followed correct, technically procedure in the Smith followed and the technically case was incorrect. judgment appealable general rule,
As a a final which is parties disposes to all of the is one which of all the issues as rel. ex puts particular an case. State end to et al. v. Hamilton Circuit Court Ind. , Neal, (1966) 248 (1969), 55; 130, 224 E. 2d VonBehren v. VonBehren N. v. 542, 35; Com 252 Ind. 251 N. E. 2d Richards Crown Point Corp. munity 347, A (1971), Ind. E. 5. School 256 269 N. 2d judgment question direction final reserves no further v. Ayres 493, Seaney (1958), future 238 determination. Ind. purpose judgment rule is final 151 N. E. 2d delay result prevent in the trial of lawsuits which would County appeals. Lake Trust Co. from limitless intermediate (1967), E. Port Commission 248 229 N. v. Indiana Ind. 457; (1907), Mak-Saw-Ba Club 2d Coffin pending us, entire 461. In the now before N. E. cases body presented of issues to the trial courts are contained appellants’ petitions. Those issues are whether permitted should be commence divorce suits poor entitled costs and whether to have the Hearings all publishing summonses wаived. were held on issues, judgments were rendered decided all of these which contemplated court action of these issues. No further trial was governing judgments judgments or After in the statutes. these nothing pending trial there left in the were rendered was following entry cases courts. These were at end judgments. judgments only final, There were not *4 disposed pending they all of the issues before sense that courts, express they final terms trial but practical absolute and sense that the real constituted appellants’ of Viewed commencement their suits. obstaсle to practical sense, in this our determination are final these judgments appealable general and policy does not our offend against permitting piecemeal appeals of lawsuits. light our appeal- of determination that final judgments, reject appellee’s
able contention that
appeals appel from them should be dismissed because remedy way lants chose not seek from them original original of an action of for writ mandate. An extraordinary action before this Court for lie writ not does remedy where way appeal at adequate. law of Original Rule, Court, Action p. Indiana Rules Although
The motion to dismiss in Smith case is denied. Thompson technically the motion to dismiss in the cor- case is rect, light it denied trial also of our remand order petitions thereby making court to resubmit rehear the dis- Thompson appeal missal merits and treatment on its practical Thompson identical result. A dismissal in the merely practical would requiring case have the effect appellant Thompson petition to refile her trial court.
Appellant, Thompson, Catherine in 1954 and was married separated filing in 1965. At the time of motion waiver her costs, unemployed of all worker, living she was an dietetic public housing marriage, with two minor born children per paid and her sole income was her month $150.00 County Department the Marion of Public She Welfare. property appreciable owned value no did not know her husband. whereabouts of Smith, caring
Appellant, Obelia children was six for her costs, petition at time she her filed for waiver of all court unemployed, property appreciable was value, owned no рer her sole income was month from Marion $225.00 County Department of Public Welfare. heard had She eight unsuccessfully her husband had months and through tried to locate him his relatives. appeal
It is the claim on trial that the *5 refusing publication the order of error in costs committed that the trial court is their contention should waived. It determining upon appellants in- that this order made digent the and further and unable to court costs by authority to make such an order is vested in the courts statute, (b), supra, by due Burns 2-211 and the §§ process equal protection clauses of the Fourteenth Amend- and ment, of Indiana. the common law insight note part necessary
As it of the into this case legal right obtain the divorce statute the affords following familiar divorce. This statute commences with the language: may application upon the of “Divorces be decreed the
injured following . . party other. for the and no .” causes 1971, 31-1-12-3, being I.C. 3-1201. Burns § addition, grants right divorce divorce statute ato upon publication in the basis of notice defendant following terms : appear plaintiff defend- “If affidavit of that the it shall state, of of the residence ant not a resident plaintiff, defendant, diligent inquiry, is unknown to give affidavit, the shall clerk in such shall be stated
which publication in pendency petition, by such of of the notice a general county three newspaper circulation apart, times, (1) provided as week (3) one successive the residence states law; such affidavit in case by mail, defend- defendant, forward, to such shall the clerk notice, containing newspaper such number ant the 31-1-12-7, being Burns I.C. marked.” the notice with 3-1206. contingent by publication in nature in A divorce years. remarry obtaining for two a divorce party such being 31-1-12-1, These Burns 3-1224. I.C. de statutory a clear provisions are statement Legislature married to afford of our cision requirements meet the substantive otherwise who legal right statute the to institute and maintain divorce actions solely upon to obtain divorce decrees based notice by publication. defendant part Both their requesting sworn statements to the trial the waiver publication costs, stated that did the where- not know abouts residence of their Both husbands. had re- made peated through attempts sources, including various contacts relatives, locate success. Both husbands without *6 seeking remedy by publication the of divorce granted by notice our statute. appellants’
We now turn to first claim that trial courts the here were authorized (b), supra, 49-1305 make Burns to § waiving the order publishing the costs summonses, of re- quested by appellants of them in these cases. It reads follows: “Any person any institute entitled to civil or action proceeding circuit, superior court, courts, may, in probate the or any pro- pro- order of the commence such action or ceeding being rеquired without payment to make the costs, vided for upon filing section 1 of this act or other court in in such court statement under oath writing, poverty that because of he make his unable is payments give such security or to for the same and
he believes that in he is entitled to the redress he seeks proceeding, setting such action briefly or alleged and forth proceeding.” nature of his action specifically is The cost of summons mentioned in this statute as a cost which be waived. The statute exempt qualified person the trial court to authorizes from the making requirement payment paying the section 1 “other judge granted setting flexibility court The trial in costs.” exemption. phrase The terms “other costs” court general meaning very and use its renders boundaries exemption, of the un authorized statute uncertain and Therefore, in order decide us, defined. before issue it is ncessary apply doing construe the statute and in so , applicable familiar and rules of construction. et al. Eads
273 802; E. 2d Corp. (1971), 275 N. Ind. J. J. & Sales The 2d (1948), 229, 79 N. E. 389. Edwards 226 Ind. Reome v. object construing determine is to foremost statute Legislature. carry Seiler truе of the and out intent (1903), ex rel. v. State Brd. Commissioners dealing one than 922. with more 65 N. E. Since we are act, requiring con an act to be the rules section of the same separate requiring same strued and sections as whole harmony together one act to another be construed ejusdem generis Statutes, applied. should I.L.E. 122. § apparent applicability here, rule since the words “other has general import preceded in court are costs” specific types (b) several Burns well-defined § Also, 2-211, poor statute, costs. Burns supra, statute, сovering subject a similar much the same matter, construing and as such be considered should meaning us, spirit before so as determine statute type give meanings, of this them of statute and harmonious Statutes, I.L.E.
From the date of its to the admission Union down to *7 indigent persons day, providing Indiana has been a leader in providing fair her courts them with free access to and in policy ex- just in treatment court. This has while found pression (b), That in 49-1305 and in such statutes as 2-211. § § latter statute as follows: “Any having prosecute poor person to sufficient means not may apply or defend an action action to to the court which pending, brought, leave or is intended to be prosecute defend, person. court, poor if satis- The or prosecute prosecute person to
fied has not means that such sufficient applicant action, shall to or defend the admit attorney assign poor person, him an or defend as and shall cause, all prosecute officers or other to defend prosecution defense, their requisite or do who shall for the duty taking any or reward therefor therein fee without person.” poor from such
274 defining Similar indigent persons stаtutes relationship vis-a-vis the courts have Territory their source in the Indiana 1813, (reprinted Laws 4ch. in 20 Indiana Historical Collec- 303-305, Ricker, tions 1934), territory Ewbank and and the origins laws turn strikingly found their similar statutes enacted year British Parliament as far back as the Henry II VII, 1495. 12, provided: 4 Stat at Large, ch. “(2) every poor person That may . . . . have which . . against cause of any action person realm, ... . .. within this original, shall . have .. writs subpoena, accord- and writs of ing to the causes, nature paying nothing of their therefor your Highness to any same, the seal of the nor to other pеrson And requisite writing for the (5) of the same writ writs. ... justices appoint likewise the shall all officers ... other necessary speed to be had for the of the said . suits . . which shall do their without reward. duties
[99] 2-211, (b) Both and Burns Burns to are intended persons exempt paying a class other court costs and necessary expenses litigation, they which are unable poverty. purpose of their It because is the stated Legis of these statutes and the intent obvious of our permit lature to free access our courts legal Hendryx (1892), and the afford. remedies v. State 113; McCarthy Hoеy 130 Ind. 29 (1890), N. E. construing 2-211, E. N. 1038. Burns § Hoey: Court stated duty manifestly “It the courts see to it justice fail, is not allowed and that denied no one is asserting rights opportunity of because his under law object charity; equally duty
he is an to but it is encourage unnecessary litigation, and fruitless public treasury opened merely to be harass allow persons against speculative whom merit claims in which no may apparent is unable to endure asserted. defendant been unequal such contest.” 124 Ind. at *8 spirit clearly of these enactments would a The condemn legal system person unjust, deny unfаir as which would a legal remedy simply inability few because of to Although dollars court costs. adherence this Indiana’s to policy unswerving, provide has been clear and it alone does not a basis for decision in this case.
Turning to involved, letter of statute we see that category grant judge cases in which a is authorized to exemption person to an “any is stated as civil sought action”. by appellants The divorce actions civil were actions, appellants and, therefore, were entitled to bene- supplied fits judges this statute. Bоth trial construed statute this manner.
The exemption following and its extent are defined in the language (b) of 49-1305 : “Any may, person . court, . . order of commence being required . pay- such action .. to without make the provided (§ J/.9-1305a)
ment section 1 . act . . upon filing (Emphasis . ... a . .” added.) statement. (a) specifically Section 49-1305 referred to above classifies following items as court costs: payable docket
$7.00 fee the State payable County clerk $6.00 service fee payment advance on Sheriff’s costs $6.00 defray postage making process service of $2.00 by mail judge may Such other court costs as the trial order paid in advance. together
Construing (a) (b) 49-1305 order and 49-1305 §§ give meaning, do, it them harmonious are bound to clear if “court the cost of a summons is a meaning (a), cost” a court within the 49-1305 then it is be relieved of cost which entitled authority ejusdem paying (b). under the of § generis determining clearly in- here in rule suitable meaning rule phrase costs”. tended “other court That as follows: has been defined *9 specific undobtedly and that “The rule is where words of general signification by a are followed
limitеd
in
statute
comprehensive
general
import,
the
of more
words
embracing only such
be construed as
words shall
things
places
persons,
like kind
and
are of
as
designated by
specific words, unless a
class to those
the
clearly
Wiggins
contrary
by the
intention is
shown
statute.”
E.
(1908),
80, 87 N.
172 Ind.
State
v.
(1906),
2d
241 Ind.
173
E.
Dunkle v. State
N.
also
See
Milligan
(1943),
Ritter’s Estate
657;
ex rel.
State
456,
preceded by clerk sheriff's a statement of and authority statutory postage. and costs the The cost specific costs trial court to waive is clear. the practically specific court are in These costs similar publishing They are every respect to the cost of a summons. by they mandatory necessary are made alike in that and option party. are of a statute and in no sense avoidable at the pub earlier, requirement summons a As stated that consequent publication is mandated cost of that lished and (Burns 3-1206, supra) a case of divorce statute § charge for a They are that type. alike in are a made legal publishing legal served similar service. functiоn essentially a the same that served summons is delivering summons, by the that served sheriff when a delivering mail; that function postman a summons process being defendant, and a service of effectuate jurisdiction thereby to entertain suit. vest the court newspaper official in same The fact a a court that legal consequence is, here. no sense a sheriff or clerk has regard relevant between a There are no differences department. parties, newspaper postal Both are and the third provide separate cоurt. Both service to litigants money. cost And there is no doubt postage a summons a “court cost” to mail publication the cost. Since the cost of trial court waive mailing summons, in in the same class as cost it is general 49- phrase cluded within the “other court costs” in attempting 1305(a). complete Without definition make statute, appears of the term “other court costs” as it in this we hold that the trial em this State have been powered by Legislature by (b) Burns waive the cost of cases, summonses in divorce refusal to appeal do on so these сases error.1 was practical problems some
We aware that will arise from this decision for those trial courts who have not heretofore interpreted statutory powers exempting to extend to *10 indigent persons paying publishing from costs of summonses today. statutory as authority we have done From re- indigent person paying lieve an from the cost of summons, paying mailing a the cost of summons, a corollary authority necessarily arises in make the courts to meaningful exemption require and to that these be costs paid public necessary permit funds when person legal remedy access to our courts and they afford. perceive We also that there are open alternatives to trial courts practical problem when faced providing with the publica- indigent persons. tion of a summons for instance, For a trial authority 4.14(B) provide court has under TR. alternative long forms of construction notice so as require- meet the process: ments of due “Upon application any party the court in which pending may action is appropriate make an order for service provided by
in a manner not these rules or statutes reasonably give such service is calculated to the defendant knowledge proceedings opportunity actual of the and an to be heard.” expressive powers
This rule is inherent retained improvise making courts to new methods of within service Although statutory 1. grounds, decide this case on State we note Supreme that when a Court, faced with similar case the United States (1971), 371, Boddie v. Connecticut 780, 401 U. S. 91 S. Ct. held constitutionally required. the result was improvisation procеss, such confines of due. where justice necessary case. State an individual
is to do 222, (1956), Brubaker Pritchard ex rel. v. (1971), 401 U.S. Boddie Connecticut 233. In v. 138 N. E. 2d identi Supreme case Court in a 91 S. divorce Ct. us, (decided on constitutional however cal to the ones before suggested statutory grounds) mail that notice than rather coupled ing posting address would to the last known requirements process of due would offend the therefore publication. They alternative to said: suitable exist reliable “In vein we think alternatives the same process state-paid sheriff if the Statе to service unwilling official assume the cost of service. This by publication method which perforce of service true potential bring to least calculated to defendant’s of notice judicial proceedings. Mullane pendency of attention the See supra. Co., think Bank & Trust Central Hanover We last in mail and case at defendant’s known address service publication in equally posted effective notice is newspaper.” 401 U.S. at courts, and cases now remanded to the trial two These aside their orders courts are ordеred to set former said trial petitioner permit entirety, to re-submit in their petitions proceedings not inconsistent with for further opinion. *11 Prentice, concur; Givan, J., JJ., concurs in
Hunter and Thompson; Arter- the case of case of and dissents in Smith burn, C.J., opinion. with dissents
Dissenting Opinion compelled C.J. I am dissent from Abterburn, majority opinion this in of its of court these cases because disregard principles basic of the Indiana for certain utter frankly majority of I am shocked that a Rules Procedure. of recognition give fit to reach court has seen out and this “appeals” standing no there is to these two cases as
279 appeal. basis under our Rules for their as an consideration “appeals” These two come before us the mere denial petition trial courts of a from publication paid to have costs public ground funds in a where- divorce case on that the of abouts husband unknown. require appeal only from
Our Rules that an taken judgment timely errors after a filed motion correct final overruled, (where interlocutory has been or from an order judgment no motion to correct errors is necessary), such having parties, order after been issued favor of one opportunity appear each has afforded been the case Procedure, be heard. Indiana See Rules Rule AP. (A). contradictory
It procedure would be of the basic rules of permit appeal every ruling trial immediate court, thereby condoning piecemeal appeals. The one ex ception only appealing judgment to the rule final from a respect appeals specified interlocutory from certain orders, types (g). specified and the оther of orders TR appeals aFor discussion such see: Richards Point Crown Community Corp. (1971), School 256 Ind. E. 2d 269 N. any judgment,
Here do not have semblance of final petition publication nor does denial of for costs of specified any interlocutory orders, come within order or other as defined in or in our rules statute. only
Hundreds of times this has reiterated parties appeal Rules, are our bound but court, likewise, is also bound its Rules. dis- own It is maying principle to see this violated court. Rules Our nothing ruling mean if this them. The court violates does They pending. not end the divorce cases. are still argued appellants (without any appellees If it be that these fact) remedy they, entitled to a because status, right pauper deprived should of their not be *12 ruling allegedly erroneous because of an divorce to sue for is, real fact, the trial the court, then court trial per- point. a trial If court refuses to interest at this party in rights plain, then a mandate action are or act where form open purpose is with- remedy, for that and this is the mandate trial court in delay and to hear both sides out plea the answer to the proper case. This is parties here. open to the should complaint filed, there is not nor is these cases a In one of stating any the husband that the residence of present affidavit although request publication unknown, for because is only correct errors filed A motion to pauperism is made. judgment. although are proper case, there is no These one re- quick these only review of cases matters which a a few sloughs majority off Yet, violations veals. appeal final from a each case to be an considers Rules and judgment, “appeal” really final an from a judgment. If it Supreme go Appeals and not to the it should Court apparently involve Rules, these cases our since under Court statutory ma- merely interpretation under the a matter of not yet why another reason should jority opinion. This is we among “appeal” too numerous to list this others entertain here. any case, holds merits of this it in effect that
As to the desiring any make the poor person divorce for reason can attorney including at it, paying taxpayers pay for an taxpayers mere are at the whim of public expense. The any showing a divorce without desire who only pauperism Rules, necessity not therefore. Under the necessary aid, taxpayers necessary but also element to secure grounds It is unthinkable relief. meritorious are every pauper out should receive a doctrine that have according according treasury to his desires and public opinion Here, is concerned his needs. so far as compel a case, mere desire is sufficient to facts showing treasury of mérito- public without draft persons, paupers who rious need. creates This two classes of anything they according can desire whim paupers their un- *13 those who not can not have what who limited desire whim envision. majority attempt requests by poor
The to limit makes no persons necessity. majority aid on for based cites quotes Hoey McCarthy (1890), 124 from the case v.
464; asking poor person that a in fact holds a for case that grounds waiver of costs must show meritorious in addi exist showing poverty. tion to court stated: That petitioner court must “The sаtisfied that has not prosecute action; that, sufficient means to the the than more ought claim upon to be satisfied that which predicated (our emphasis) action is a meritorious one.” Id. at 466. although duty That case further states that it a of the to that see meritorious claims and defenses do not fail support them, yet, equally duty lack of funds to it is encourage unnecessary “not litigation, to and fruitless public treasury opened merely allow the to be to harass against speculative apparent whom claims which no merit is may be asserted.” Id. at 466-67. certainly encourage,
Courts should not nor should permit attorneys encourage litigation. feeling I have a majority opinion just that this does that. say
I open do not mean to the courts are not indigent necessity who a shows need and assistance pursuing remedy and that such in such case is public treasury. not entitled But, out assistance I do say procedure and method used here our violates entertaining Rules for addition, matter. there ais necessity failure to show and need for the on assistance grounds. public meritorious Such treasury draft on the can whim, not be left to the mere person wish or desire of a merely showing indigency based on alone. fortitude, its
I feel court should have jurisdiction appeal called to a lack of for an attention is comply court, dismiss with of this failure Rules eagerness, appeals out, apparently not reach really opinion before to render an in a matter which backlog which With a of cases in this court in us. properly spent jurisdiction, time could be better on cases our being delayed for decision. in this court which Note.—Reported N. E. 2d 657. in 286
Hughland Indiana Wardlaw State September 5, 1972. Filed 571S141.
[No. Rehearing denied October 1972.]