Opinion
No. 29,525.
Filed June 18, 1957.
1. MANDAMUS AND PROHIBITION — Change of Venue — Unverified Motion — Issues Closed — Rules of Supreme Court. — An unverified motion for change of venue from the county was filed more than ten days after the issues were first closed and the trial court, upon motion, struck out the motion. The motion should have been overruled but the error was harmless since the motion for change of venue was not filed within ten days after the issues were first closed on the merits and the relator failed to show cause for an extension of time by reason of late discovery as required by Rule 1-12-B. p. 4.
2. PLEADING AND PRACTICE — Motion for Change of Venue — Verification — Rules of Supreme Court. — An unverified motion for change of venue from the county is proper in civil cases under Rule 1-12-B, but it must be filed within ten days after the issues are first closed on the merits. p. 4.
Original action by State of Indiana on the relation of Iwan Janelle, relator which seeks a writ of mandamus to compel Lake Superior Court, Room No. 4, Anthony B. Roszkowski, Judge, respondents, to grant a change of venue from the county. An alternative writ was issued.
Alternative writ of mandamus vacated.
Rondinelli Rondinelli and Frank A. Rondinelli, of Gary, for relator.
Alvin D. Rosenbloom, of Gary, for respondents.
This is an original action for an alternative writ of mandamus to compel the respondent court to grant a change of venue from the county. We issued the alternative writ to order the change or show cause.
The certified copies of the court records filed by petitioner disclose that on June 25, 1956, the relator filed an answer in two paragraphs to the complaint of Bernard Baruch, et al. doing business as Baruch Oldsmobile. No certified copy of the answer has been filed here, and since no rule to reply was entered against the plaintiffs, we must presume this answer closed the issues in the cause.
Later, on November 15, 1956, the relator filed a cross-complaint, to which the plaintiffs filed an answer on November 16th. On November 20, 1956, the relator filed an 1. unverified motion for change of venue from the county. On December 10, 1956, the court, on motion of the plaintiffs, struck out the motion for change of venue from the county. The motion should have been overruled, but the error was harmless, since the motion for change of venue was not filed within ten (10) days after the issues were first closed on the merits, and the relator failed to show cause for an extension of time by reason of late discovery of the cause, as required by Rule 1-12-B, effective January 2, 1956.
An unverified motion is proper in civil causes under this rule, but it must be filed within ten (10) days after the issues are first closed on the merits, unless a later time is proper 2. as provided by the rule. The rule was intended to prevent delay by reopening the issues and then filing a motion for change of venue.
The writ was improvidently issued and the same is now vacated.
NOTE. — Reported in 143 N.E.2d 288.