Dissenting Opinion
Hunter, J.I regret that I must dissent from the majority opinion in this case, which in effect holds that after two years and eight months in which it appeared a motion for a change of venue was totally abandoned, the trial court nevertheless *221has lost jurisdiction, and the change of venue must be granted in a writ of prohibition to this court.
It should be noted that the record before us is not sufficient for us to act upon a writ of prohibition since under Rule 2-85, certified copies of all pertinent court records of the trial court must be made exhibits to the petition asking for the writ. The relators here do not have any properly certified copies by the .clerk of the trial court of the petition to probate the will, the plaintiff’s complaint to resist the probate of the will and the orders and entries in Cause Number 196-66 pertaining to the subject matter here. They only present “certified” copies made by the parties personally. This, of course, is not sufficient. State ex rel. Dean v. Tipton Circuit Court (1962), 242 Ind. 642, 181 N. E. 2d 230. State ex rel. Buis v. Hendricks Superior Court (1964), 246 Ind. 1, 201 N. E. 2d 697.
The relators in their verified petition state: “However, the clerk of the Circuit Court of Jasper County failed to certify the petition to probate in the certified record.” It is obvious this court does not have the facts upon which to determine the merits of this case.
However, since the majority opinion assumes to go into the merits, I shall give due consideration to that matter.
The record shows that the decedent, Gawanda J. Beehert, died a resident of Jasper County on November 16, 1965. On January 5, 1966, objections were filed to the probate of any will in the estate of the decedent. Thereafter on August 11, 1966, the relator James E. Beehert filed a petition to probate the will of the decedent and simultaneously filed a motion for a change of venue from Jasper County to probate Cause Number 4049. On September 8, 1966, and within thirty days after the petition to probate the will, as provided by statute, a complaint to resist the probate of the will was filed, and it was given a separate civil cause number, 196-66. The relators under the latter cause number, appeared and filed an answer to the complaint to resist the probate of the will and filed a *222second motion for a change of venue, but in this latter cause number 196-66 the relators also asked for a jury trial on the issue of the probate of the will.
This second change of venue from the .county was denied by the court and subsequently the denial was upheld in the Supreme Court of this state in the case of State ex rel. Bechert v. Jasper Circuit Court (1968), 249 Ind. 695, 234 N. E. 2d 492.
Then, on April 17, 1969, five days before the date set for trial, relators filed a motion for continuance and a motion to dismiss the suit on the ground the Jasper Circuit Court lost jurisdiction because two and one-half years prior thereto the relators had filed their first motion for a change of venue in the probate cause, number 4049.
During the two years and eight months that followed the filing of the motion for a change of venue on the petition to probate the will in the probate court in cause number 4049, the relators have filed or acted on in cause number 196-66, where the issue is joined on the probate of the will, the following:
(1) September 28, 1966, general appearance to the complaint to resist probate of will.
(2) September 28, 1966, written request for trial by jury.
(3) November 15, 1966, answer to plaintiff’s complaint to resist probate of will.
(4) November 15, 1966, motion for change of venue from the county on complaint to resist probate of will. (Denied by Jasper Circuit Court.)
(5) Proceedings in Supreme Court of Indiana to mandate Jasper Circuit Court to grant change of venue. (Writ denied) (State ex rel. Bechert v. Jasper Circuit Court et al. (1968), 249 Ind. 695, 234 N. E. 2d 492).
(6) August 16, 1968, motion for continuance of jury trial set for September 19, 1968 in suit to resist probate of will and request that said trial be re-set after January 1, 1969.
(7) January 28, 1969, Jasper Circuit Court re-set cause for jury trial on April 22, 1969.
*223(8) April 17, 1969, motion for continuance and motion to dismiss complaint.
The writ asked for herein is to enforce a change of venue in cause number 196-66 in the civil docket because a petition to change the venue was filed in the probate court two and one-half years prior thereto where, in an ex parte action, along with the application to probate, the relators filed an affidavit for a change of venue, which they never pushed and never presented to the court for action.
The majority opinion states that a motion for a change of venue “cannot grow so stale from the passage of time alone that it need not be granted” and then cites the case of State v. Laxton, et al. (1961), 242 Ind. 331, 178 N. E. 2d 901, as authority therefor. The facts reveal there that although the motion for a change of venue was filed in that case on July 18, 1959, through inadvertence by the clerk it was not brought to the attention of the court until November 4, 1959, when the party presented it to the court for action. Next month, on December 19, 1959, that party requested the court to grant the change, and the court overruled the change on February 3,1960. The facts show no long period of time such as we have here of more than two years or action by the party in that case inconsistent with its application and desire to change the venue from the court. The case does not appear to be on point. Therefore, it is my belief that the staleness of the motion as demonstrated by the record has conferred jurisdiction upon the court by acquiescence amounting to waiver of the right to change of venue.
Furthermore, I point out that before a person may ask for a writ of mandate or prohibition, he must show that he has acted with all promptness and speedily. The relators here make no excuse whatsoever for the lapse of two and one-half years in asserting their rights under said motion. Possibly relators allowed the court to proceed to that point where the climate or court rulings were no longer favorable and then *224wished they had insisted upon their original motion for change of venue.
Had the relators desired really and seriously to press their first application for change of venue, they could have done so instead of filing a second application for a change of venue, which they took to this court, and in which they received an adverse ruling, as previously stated.
For the foregoing reasons I am of the opinion that the relators at this late period have removed themselves from the cloak of equity in seeking a writ of prohibition in another cause, wherein they have slept upon their rights and permitted the parties and the court to reach the point of fixing a trial date in this matter.
The writ should be denied.
Jackson, J., concurs.
Note. — Reported in 252 N. E. 2d 589.