State Ex Rel. Mays v. Fayette Circuit Court

Per Curiam.

This is an original action for an alternative writ of mandate to compel the respondent court to grant a change of venue from the county. The alternative writ was issued to order the change or show cause.

The certified copies of the court records filed by relators disclose that a complaint in the Madison Circuit Court was filed March 11, 1965, against Madison County Committee for the Reorganization of School Corporations, and the several members thereof, represented by the Attorney General; J. G. Kohlmeyer, Director of the State Commission, also represented by the Attorney General; and Hon. Carl T. Smith as Judge of the Madison Circuit Court.

*207We have set forth in sequence the steps taken:

The relators-plaintiffs filed a supplemental complaint on July 2, 1965 adding the names of defendants Charles B. Parker, Mark Noble, Kenneth Harting, Jr., Wilfred Shaw and Lowell M. Butcher; on April 22, 1965, the said Judge of the Madison Circuit Court disqualified himself as a party in the action and thereafter following the appointment of Hon. Frank Fisher as special Judge by this court, relators-plaintiffs in said action took a change of venue from the County of Madison to Henry County; an answer was filed by the defendants on September 1, 1966; on December 14, 1966, a motion for change of venue was filed by the named additional party defendants in the supplemental complaint to Fayette Circuit Court; on March 23, 1967, the said supplemental defendants moved to dismiss the cause of action as to themselves over the objection of the relators-plaintiffs; on April 10, 1967, plaintiffs-relators filed a written memorandum in opposition to the motion to dismiss; on April 21, 1967, plantiffs-relators filed a motion for a change of venue from the judge; on May 1, 1967, the defendants filed a motion to strike from the files and reject plaintiffs’ request for change of venue from the judge; on May 5, 1967, plaintiffs-relators filed objections to defendants’ motion to strike from the files and reject plaintiffs’ request for change of venue from the judge; on the same day the respondent judge ordered the request of plaintiffs-relators for change of venue from judge rejected and stricken from the records and ordered the action to be dismissed as to defendants Charles B. Parker, Mark Noble, Kenneth Harting, Jr., Wilfred Shaw and Lowell M. Butcher named in the supplemental complaint; on May 17,1967, plaintiffs filed a motion to expunge entry of May 5, 1967, which was overruled by said court on the same day.

It is the relators contention that the only issue presented is the granting of a request for a change of venue from the judge which request was filed by the relators-plaintiffs in the Trial Court as their first and only request of change *208of venue from the judge when the issues had not been closed in said cause.

The respondents maintain that the request for a change of venue was denied because it was filed more than 10 days after the change of venue to the Fayette Circuit Court.

It is to be noted that pursuant to Rule 2-85 and to the pertinent part thereof which states:

“. . . If the relief sought relates to a proceeding in an inferior court, certified copies of all pleadings, orders and entries pertaining to the subject matter should be set out in the petition or made exhibits thereto, . . .”

that no certified copies of the answers of the defendants in the original action commenced in Madison County were filed in this court in this original action, although it is indicated in relators’ Exhibit “A,” being a transcript of the pleading papers and entries, that an answer had been filed on September 1,1966 by the defendant James Craig, et al.

Furthermore, it is the law of this state that unlike an amended pleading, a supplemental pleading does not supersede the pleading which it seeks to supplement, but both stand as a single pleading. This is true because the supplemental pleading relates back to the filing of the original pleading so as to become a part of it. Montgomery v. Crum (1928), 199 Ind. 660, 161 N. E. 251; Cincinnati, H. & D. R. Co. v. McCullom (1915), 183 Ind. 556, 109 N. E. 206 affirmed 38 S. Ct. 64, 245 U. S. 632, 62 L. Ed. 521; Muncie & Portland Traction Co. v. Citizens’ Gas & Oil Mining Co. (1913), 179 Ind. 322, 100 N. E. 65; Big Creek Stone Co. v. Seward (1896), 144 Ind. 205, 42 N. E. 464, rehearing denied 144 Ind. 205, 43 N. E. 5; Pouder v. Tate (1892), 132 Ind. 327, 30 N. E. 880; Davis v. Krug (1884), 95 Ind. 1; Kimble v. Seal (1883), 92 Ind. 276; Morey v. Ball (1883), 90 Ind. 450; Musselman v. Manly (1873), 42 Ind. 462; Larch v. Holz (1913), 53 Ind. App. 56, 101 N. E. 127.

*209The supplemental complaint filed by the plaintiffs-relators did not supersede the pleading which it sought to supplement. The answer filed to the original complaint brought the matter to issue on the merits.

The filing of the motion for a change of venue, therefore, was not timely under Rule 1-12B of this court.

In State ex rel. Janelle v. Lake Superior Court, Roszkowski, Judge (1957), 237 Ind. 3, 143 N. E. 2d 288, the court held that an unverified motion for a change of venue is proper in civil cases under Rule 1-12B, but it must be filed within 10 days after the issues are first closed on the merits.

For the reasons hereinabove set forth, the writ was improvidently issued and the same is now vacated.