City of Evansville v. Baumeyer et al., 245 Ind. 643

Achor, C. J. — The above captioned cause has been transferred to this court from the Appellate Court upon an equal division of the court, pursuant to §4-215, Burns’ 1946 Replacement. The issue in controversy arose from the following factual situation: The appellees, on August 8, 1958, filed their complaint against appellant, City of Evansville, and others, to enjoin the enforcement of an order of the Municipal Civil Service Commission, dated August 2, 1958, establishing permanent ranks for the members of the police department of said city. The action was filed in the Vanderburgh Probate Court.

The latter court issued a restraining order on said complaint. On August 22, 1958, the cause was venued to the Gibson Circuit Court. The appellants filed a demurrer to appellees’ complaint, which was sustained by the Gibson Circuit Court on November 1, 1958. The latter court, at the time of sustaining the demurrer, gave the appellees “until November 18, 1958, to plead over.” [Our italics.] On November 3, 1958, appellees filed their motion for change of venue from the county. The motion was sustained, and, thereafter, on November 24, 1958, the case was transferred to the Superior Court of Knox County.

On January 23, 1959 [being some 60 days after the date fixed by the Gibson Circuit Court to “plead over”], appellees filed an amended complaint. Thereupon, appellants filed a motion to strike the amended complaint from the files and to dismiss the action.

This motion is grounded on the fact the sustaining of the demurrer to appellees’ complaint, and upon the failure of appellees to file an amended complaint within the time given, or any extension of time therefor, no cause of action or justiciable issue was before the court,' but only a cause number, and therefore that appellants were entitled to have the “cause” dismissed or stricken from the record. The motion was overruled and thereafter the causé was put at issue, tried, and judgment rendered for appellees.

The overruling of the motion to dismiss, above referred to, is the first error in the proceedings here asserted as cause for appeal. Thus, the first and primary issue presented in the case may be stated as follows: Does the filing of a motion for change of venue from the county satisfy the ruling of the court to “plead over,” at a time when, because of the sustaining of a demurrer, no issues are pending before the court? Appellants, in support of their position, cite and rely upon the case of State ex rel. Daily v. Harrison, Special Judge (1939), 215 Ind. 106, 107, 108, 109-110, 18 N. E. 2d 770.

In that case the relator petitioned this court for a writ of mandamus to require the respondent to grant a change of venue, which writ was denied on the ground that the court having sustained a demurrer to the complaint, “there was no action pending at the time the change of venue was asked.” Because the facts in the above cited case were in many respects analogous to the facts in the case at bar, we quote therefrom at length. In resolving the issue presented this court stated: “ . . . The court sustained a demurrer to the complaint to review and gave relator until December 12th to amend.

On that date the relator filed a motion and affidavit for change of venue from the judge, without filing or offering an amended complaint. Thereafter, on December 23rd, the court on its own motion set aside the order granting time to amend, overruled the motion for a change of venue, and rendered judgment against the'relator.... [our emphasis.] ..... The relator claims that his right to a change of venue under the facts is absolute..

Respondent says that the sustaining of a demurrer to a complaint for a review of a judgment for errors of law only confirms the original judgment and terminates the suit, so that there was no action pending at the time the change of venue was asked. [Our. emphasis.] ... . . . After a demurrer to a complaint has been sustained, and after the time granted to amend has expired, and there is no request for further time, no cause of action is pending upon which an issue of law or of fact may be joined, and nothing remains for the court to do other than to enter a formal judgment. [In] Carr v.

State (1924), 194 Ind. 162, 142 N. E. 378, . . . [t]he change of venue was denied and this court said (p. 164): ‘ . . . Such a change is authorized only where the party shows by his affidavit that he “cannot receive a fair trial” of some issue that remains to be heard.’ ... . . . The motion for change of venue did not toll the time to amend, and the relator must be held to have closed the door upon himself. When, on December 23rd, the court denied his motion for a change of venue and rendered judgment against him, he was already ten days delinquent in complying with the order to amend.

Under this state of the record he is not entitled to the relief sought.” [Our emphasis.] Appellees, in opposition to the position asserted by appellants, cite and rely upon the case of Caddie v. Holloway (1957), 237 Ind. 382, 145 N. E. 2d 426, 146 N. E. 2d 247, which, they assert,- is in direct conflict with the rule enunciated in the Harrison case, supra. They further assert that the Gaddie case, being the more recent decision upon the issue, is controlling. However, the latter case is distinguishable in that the factual situation is altogether different.

In the latter case, justiciable issues were before the court, as presented by both a complaint and a counterclaim, and the order of the court merely directed the plaintiff to “file appropriate pleadings” to the counterclaim on or before a specified date. Therefore, a motion for change of venue was an appropriate pleading, authorized by statute, for the purpose of assuring the parties a trial, before an impartial tribunal, of the issues which were before the court.

In clear contrast with the Gaddie case, supra, the case at bar stands on the records of the court as a mere cause number, with named parties, and a right to file. an amended complaint, within the limitations of the order of the court, but the case stood unsupported by any pleading or issue, to which the motion for change of venue could be addressed.

Therefore, although the rule to “plead over” did not specifically call for an amended complaint, such a pleading was clearly contemplated since it was the only pleading which could re-establish any issue in the case and again give the plaintiff any standing in the court. We are judicially aware of the fact that the right of change of venue is abused frequently by parties for the mere purpose of delay. We have stated that a desire for delay is not a proper cause for seeking a change of venue from a county. State ex rel. Young v. Niblack (1951), 229 Ind. 596, 99 N. E. 2d 839; Chissom et al. v.

Barbour et al. (1885), 100 Ind. 1; Houser v. Laughlin (1914), 55 Ind. App. 563, 104 N. E. 309. We also judicially know that changes of venue are frequently employed for the purpose of obtaining successive “rehearings” by different judges on the pleadings in a case. We should not and do not sanction further abuse of the right to changes of venue by permitting the filing of such motions when no issue or justiciable cause of action is actually before the court.

Such procedure is with respect to the party adversely affected, in derogation of the constitutional guarantee that “Justice shall be administered . . . speedily, and without delay.” Art. 1, §12, Indiana Constitution. Under the facts presented in this case, for the reasons above stated, “The motion for change of venue did not toll the time to amend, ...” State ex rel. Daily v. Harrison, supra (215 Ind. 106, 109).

Therefore, upon appellees’ failure to file an amended complaint within the time specified by the court, or an extension of time granted by the court for that purpose upon motion of the appellees, it was the mandatory duty of the court to dismiss the action. Judgment is, therefore, reversed. Landis, J., and Myers, J., concur. Arterburn, J., not participating. Jackson, J., concurs in the result.