State v. SUPERIOR COURT OF MARION COUNTY, ROOM NO. 3

308 N.E.2d 694 (1974)

STATE of Indiana On the Relation of Irwin Katz, Relator, v. The SUPERIOR COURT OF MARION COUNTY, ROOM NO. 3 and Glenn W. Funk As Judge of Superior Court of Marion County, Room 3, Respondents.

No. 174S2.

Supreme Court of Indiana.

March 29, 1974.

Marvin Mitchell and Irwin J. Prince, Indianapolis, for relator.

John C. Carvey, Richard P. Watson, Carvey, Watson & McNevin, Indianapolis, for respondents.

HUNTER, Justice.

This is an original action wherein the relator prays for an alternative writ of mandate to issue as a result of the trial court's ruling on a motion for change of venue. The sole question presented is whether the motion for change of venue was timely filed. The stipulated facts may be briefly stated:

(1) April 6, 1973 Plaintiff files his complaint. (2) May 24, 1973 Relator files his answer and a counterclaim. (3) October 30, 1973 Relator files amended counterclaim. (4) October 30, 1973 Relator files motion for leave to amend answer. (5) November 1, 1973 Respondent court grants order for leave to amend answer. (6) November 6, 1973 Relator files motion for change of venue pursuant to T.R. 76. (7) November 21, 1973 Respondent court overrules motion for change of venue.

The trial court correctly overruled relator's motion for change of venue as the motion was not timely filed. State ex rel. Yockey v. Superior Court of Marion County (1974, Supreme Court), 307 N.E.2d 70. In Yockey, supra, this Court held that for purposes of T.R. 76(2), the issues are "deemed first closed on the merits upon the filing of defendant's answer. Filing of the answer shall initiate the ten (10) day time period within which the change of venue motion must be filed." The holding in Yockey controls the case at bar. Relator's motion for change of venue was filed long after the ten (10) day time period expired. The trial court was correct in overruling the same. Therefore, the writ herein prayed for is denied.

Writ denied.

ARTERBURN, C.J., and DeBRULER, GIVAN and PRENTICE, JJ., concur.