Opinion
No. 684S217.
August 31, 1984.
Thomas J. Herr, Saul I. Ruman Associates, Hammond, for relators.
Linley E. Pearson, Atty. Gen., Robert S. Spear, Chief Counsel-Litigation, Ronald D. Buckler, Deputy Atty. Gen., Indianapolis, R. Kent Rowe, Rowe Lederer, South Bend, for respondents.
Following oral presentation of the Petition for Writ of Prohibition and Writ of Mandamus, this Court advised the parties that it would unanimously deny the petition. Relators then filed their petition and related papers with the Clerk of the Court. This opinion affirms the denial of the petition for the writs.
On December 8, 1983, relators filed a complaint for damages in Lake Circuit Court. Defendants were Charles L. Parks, L.C. Campbell and Midwestern Electric, Inc. On January 17, 1984, Midwestern Electric, Inc. moved for, and was granted, a change of venue from the county. The case was transferred to the Jasper Superior Court.
Relators amended their complaint on February 22, 1984, to add the State of Indiana as a party defendant. The State timely moved for a change of venue from the county pursuant to Ind.R.Tr.P. 76. In response, relators filed a motion to deny the change. Judge McGraw ruled against relators and granted the State's motion for a change of venue.
Relators contend the State was not entitled to a change of venue because one of the original party defendants had previously been granted an automatic change. They rely on State ex rel. First State Bank of Whiting v. Porter Superior Court, (1983) Ind., 447 N.E.2d 568, in which this Court held that co-parties, as a group, are entitled to only one automatic change of venue. Therefore, argue relators, only one automatic change of venue pursuant to Ind.R.Tr.P. 76 is allowed to all defendants, regardless of when they are joined in the cause of action.
Relators' interpretation of First State Bank of Whiting is too expansive. Our ruling in that case does not preclude a defendant joined after the original filing of an action from obtaining a change of venue. Similarly, the cases cited by relators do not support their alternative contention, that a second-generation defendant may be allowed an automatic change of venue only where the first-generation defendants have not taken a change. See State ex rel. Worstell v. Porter Superior Court, (1981) Ind., 419 N.E.2d 127; State ex rel. Crane Rentals, Inc. v. Madison Superior Court, (1977) 266 Ind. 612, 365 N.E.2d 1224.
We hold that a second-generation, or any subsequent generation, defendant or group of defendants is entitled to an automatic change of venue pursuant to Ind.R. Tr.P. 76. This facilitates the fulfillment of the purpose of the trial rule which is designed to provide a fair and impartial trial to all parties. See State ex rel. Yockey v. Superior Court of Marion County, Rm. No. 6, (1974) 261 Ind. 504, 307 N.E.2d 70 (DeBruler, J., dissenting); Piwowar v. Washington Lumber Coal Co., (1980) Ind. App., 405 N.E.2d 576. We also reaffirm our holding in First State Bank of Whiting, supra, that only one of a group of contemporaneously named party defendants may be granted a motion for a change of venue.
The denial of relators' petition is hereby ratified.
HUNTER, DeBRULER and PRENTICE, JJ., concur.
PIVARNIK, J., not participating.