Lewis v. Burke, Extr.

257 Ind. 597 (1972)

277 N.E.2d 161

GEORGE C. LEWIS v. MYERS BURKE, EXECUTOR OF ESTATE OF COPELAND.

No. 172S5.

Supreme Court of Indiana.

Filed January 12, 1972.

*598 Hartell F. Denmure, of Aurora, Robert S. Justice, of Logansport, for plaintiff.

Chester R. Callis, of Vevay, Frank E. Spencer, of Indianapolis, for Executor defendant.

Mrs. Gretchen H. Cole, of Vevay, John A. Farr, of Anderson, for Intervener heirs.

PRENTICE, J.

This cause is before us upon praecipe of Defendant (Petitioner) and the resultant notice from the Clerk of the Switzerland Circuit Court advising of the withdrawal of submission and requesting us to appoint a special judge by reason of the undue delay of the trial judge in ruling upon Defendant's Motion to Dismiss; and it is now so docketed for determination under Trial Rule 53.2(A).

Said notice and the praecipe therefor disclose that the petitioner's motion to dismiss was filed and argued on December 1, 1970, and fully briefed and taken under advisement on January 29, 1971. It is further disclosed that said judge held said matter under advisement until June 30, 1971, upon which day said motion was overruled. Petitioner's praecipe was filed with the Clerk of the Switzerland Circuit Court on November 5, 1971.

We have recently passed upon similar questions arising under T.R. 53.1(A) and determined that affirmative action by counsel or the Clerk is a prerequisite to the operation of said rule. Jolly v. Modisett (1971), 257 Ind. 426, 275 N.E.2d 780; Raisor v. Kelly (1971), Ind., 275 N.E.2d 542.

Petitioner's motion should have been ruled upon within thirty days from submission, and the trial judge was subject to removal on and after February 29, 1971. However, no affirmative action having been taken as prescribed in Jolly v. Modisett, supra, and Raisor v. Kelly, supra, the jurisdiction of the trial judge continued and was operative on the date of his ruling.

*599 Accordingly, the withdrawal of submission is hereby set aside, and the jurisdiction of the trial judge is continued.

Arterburn, C.J., and Givan and Hunter, JJ., concur; DeBruler, J., dissents.

NOTE. Reported in 277 N.E.2d 161.