State Ex Rel. Beaven v. Marion Juvenile Court

184 N.E.2d 20, 243 Ind. 209, 1962 Ind. LEXIS 154

Opinions

Arterburn, C. J.

—

*The relator has asked for a writ of mandate to compel the respondent to grant a jury trial in a paternity proceeding. The trial court denied the request because it did not comply with Rule 1-8A. That is to say, the request was not filed within ten days “after the issues are first closed . . ., or if the issues are closed without answer by operation of law.”

The record shows here that this cause was filed on May 20, 1960. A continuance was granted on August 13, 1960 upon request of the defendant and a second continuance was granted on December 1, 1960 on request of the plaintiff. The cause was set for hearing on March 17, 1961, but the relator (defendant below) did not appear and it was again continued when relator’s counsel withdrew. New counsel appeared on April 6, 1961 for relator and then filed an answer and also a request for a jury trial, which the trial court refused.

In this case we have before us a unique statutory proceedings. It is both civil and criminal in character, in that the statutes provide in the alternative for the issuance of notice to the defendant by the service of summons or for his arrest, as in criminal cases. Acts 1941, ch. 112, §§12, 13, p. 301, being §§3-634, 3-635, Burns’ 1946 Repl.

It is apparent from the tenor of the law that it is intended that the proceedings be conducted expeditiously in order that the infant, which is the subject of the action, may be supported from the time of its birth. See: Davidson v. The State, ex rel. Vanmeter (1878), 62 Ind. 276, 280. Thus, consistent with the purpose of the act, it is provided that in event the defendant fails to appear at the time fixed for hearing of the matter, the cause may be heard in his absence. Acts 1941, ch. 112, §14, p. 301, being §3-636, Burns’ 1946 Repl.

The statute is silent as to the legislative intention with regard to the formation of issues in this proceeding. Although the former statute provided that the rules regarding civil cases should govern such proceedings, this provision was omitted from the present statute (See: Reynolds v. The State, ex rel. Cooper (1888), 115 Ind. 421, 422, 17 N. E. 909, 910) which included the new and additional provision that the proceedings might be heard in the absence of the defendant in event of his failure to appear. Clodfelder v. Walker (1955), 234 Ind. 219, 125 N. E. 2d 799. This would indicate a legislative intention that in these proceedings, although formal pleadings might be permitted as in ordinary civil cases, such formality in the formation of issues is not necessary.

Under the above circumstances, if the parties by their action with respect to the case, adopt the position that the cause will be tried upon the issues asserted in the petition of the relator, without the formality of pleadings as required in civil cases generally, the parties by such action (by their own conduct) adopt the position that insofar as the closing of issues is necessary to an, expeditious disposition of the case, the issues will be considered closed “by operation of law.” A defendant who either actively or passively consents to the setting of a case for trial without the issues being formally closed by the filing of an answer and thus treats the issues as being closed by operation of law, cannot thereafter demand any action in the case which, by rule of this court, he should have asserted prior to the closing of the issues.

Under the facts of this case, if a party makes no timely objections as soon as he learns of the setting of a case for trial where the issues are not yet formally closed by an answer, he has waived his opportunity to request a jury trial under the rule of this court.

To require the trial court to grant a jury trial under the facts in this case would establish a precedent under which a defending party in any case could delay filing his answer (even though not required to file an answer under the procedure) until the day of trial and then request a jury trial or, under the rule with reference to a change of venue, request a change of venue. To permit such an interpretation of our rule is not consistent with its objective.

In Hayworth v. Bromwell (1959), 239 Ind. 430, 437, 158 N. E. 2d 285, 288, we said:

“Under the rule prevailing prior to the adoption of Rule 1-8A, supra, a jury trial could be demanded on the morning the trial was to begin. This resulted in many delays and added to the cost of the litigation. The effects of such action are so generally known that it seems unnecessary to burden this opinion by elaborating on them.

“The adoption of Rule 1-8A, swpra, was simply an act by this court designed to expedite the decisions of cases and remedy an abuse in the practice.” See also: State ex rel. Boger v. Daviess Circuit Court (1959), 240 Ind. 198, 163 N. E. 2d 250; State ex rel. Blood et al. v. Gibson Circuit Ct. (1959), 239 Ind. 394, 157 N. E. 2d 475; State ex rel. Janette v. Lake Sup. Ct. (1957), 237 Ind. 3, 4, 143 N. E. 2d 288; Vinson v. Rector et al. (1962), 243 Ind. 152, 182 N. E. 2d 799.

The alternative writ is dissolved and the permanent writ is denied.

Achor and Landis, JJ., concur. Jackson, J., dissents with opinion in which Bobbitt, J., concurs.

This case was reassigned at a conference of this court on June 26, 1962, and the writer of this opinion received it for the first time on that date.