Opinion
No. 272S21.
Filed February 25, 1972.
Opinion on Petition to Withdraw Submission Under Trial Rule 53.1.
Withdrawal of submission vacated.
James F. Harper, of Terre Haute, for plaintiff. Eric A. Frey, Rosenfeld, Wolfe Frey, of Terre Haute, for defendant.
Eugene Tonetti, plaintiff in an action filed in the Vigo County Superior Court as Cause No. S-70-723, filed notice by William H. Brighton, then Clerk of the Superior Court of Vigo County, for the withdrawal of the submission of said cause from The Honorable Harold J. Bitzegaio, the regular Judge of said Court, pursuant to Trial Rule 53.1 of this Court. Subsequent to the filing of the notice in this court The Honorable Harold J. Bitzegaio filed his response with this Court.
Judge Bitzegaio's response discloses the following facts:
That this property damage action was filed on November 13, 1970, and tried to the court without a jury on June 10, 1971. At the close of the trial the court announced that plaintiff had failed to establish that he was entitled to damages by the preponderance of the evidence. The court granted the parties additional time within which to submit authorities. Thereafter, plaintiff filed a succession of briefs and memoranda in support of his position, the last of which was filed on September 2, 1971. Following the last filing of briefs by the plaintiff the court again advised plaintiff's counsel that the court was not persuaded by the authorities submitted and that judgment would be rendered for the defendant.
On October 18, 1971, Judge Bitzegaio entered judgment in favor of the defendant and refused to disqualify himself in the cause for the reason that in his opinion the delay in ruling was produced at the request of the plaintiff, who now seeks to invoke Trial Rule 53.1. Judge Bitzegaio points out that the last brief submitted by the plaintiff in support of his case was filed only eight days before the expiration of 90 days from the trial.
Based upon the foregoing facts it is the decision of this Court that the provisions of Trial Rule 53.1 are not applicable in that Judge Bitzegaio did not violate the requirements of said rule as contended by plaintiff's counsel. The request for special judge is, therefore, denied. The withdrawal of the submission is ordered vacated and set aside. The judgment of the trial court entered October 18, 1971, is a valid entry subject to the right of appeal over which the trial judge has all necessary jurisdiction.
Arterburn, C.J., and DeBruler, Hunter and Prentice, JJ., concur.
NOTE. — Reported in 279 N.E.2d 205.