Opinion
No. 174S2.
Filed March 29, 1974.
VENUE — Trial Rule 76 (2). — For purposes of Rule TR. 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 day time period within which the change of venue motion must be filed.
Original Action.
Relator prays for alternative writ of mandate to issue as a result of the trial court's ruling on a motion for change of venue.
Writ denied.
Marvin Mitchell and Irwin J. Prince, of Indianapolis, for relator.
John C. Carvey, Richard P. Watson, Carvey, Watson McNevin, of Indianapolis, for respondents.
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 TR. 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. The Superior Court of Marion County (February 15, 1974, Supreme Court No. 1173 S 222). In Yockey, supra, this Court held for purposes of TR. 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 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., DeBruler, Givan and Prentice, JJ., concur.
NOTE. — Reported in 308 N.E.2d 694.