The opinion
Dissenting Opinion
Buchanan, J.
I respectfully dissent from the majority decision on these grounds:
1. The local rule of the Hancock Circuit Court prohibiting the Clerk from filing pleadings received for that purpose and directing the Clerk to mail same to the Special Judge-for filing and custody, is invalid because it is contrary to Indiana law.
2. The default judgment entered by the Special Judge on March 10, 1969, was void, and not voidable because a Motion for Change of Venue From The County was on file at the time the default was entered and the Special Judge had no jurisdiction to enter such a judgment.
RESTATEMENT OF ESSENTIAL FACTS — On Friday, March 7, 1969, the Indianapolis counsel of the defendants sent a letter to the Clerk of the Hancock Circuit Court with an Enclosed Answer, Request for Jury, and a Motion for Change of Venue from the County with the request that file-marked copies be returned in the enclosed stamped, self-addressed envelope. The name of the case and the cause number were clearly indicated. Plaintiff’s Indianapolis counsel acknowledged receipt of these papers on Saturday morning, March 8. On Monday morning, March 10, the letter with enclosures was received by the Hancock County Clerk. This fact is supported by the Superintendent of Mails in Greenfield, Indiana, *74 who stated in an affidavit that, according to delivery schedules, these papers should have arrived in the Clerk’s office before 10:00 A.M.
Upon receipt of the papers, the affidavit of the Clerk states that she did not file-mark them. Instead, they were placed in an envelope and set aside for mailing to Special Judge Smith at his office in Anderson, Indiana, pursuant to the local court rule requiring the Clerk to send such pleadings directly to the Special Judge in the case rather than mark them filed.
Meanwhile, unknown to the Clerk, and while the pleadings were still in the Clerk’s office, Judge Smith came from Anderson to the Clerk’s office, where he entered a default judgment against the defendants. Judge Smith apparently did not realize that these papers were delivered to the Clerk earlier that day. There is no evidence that Judge Smith consulted with the Clerk or examined the Clerk’s records to determine if any pleadings had been received or “filed”.
The unrebutted sworn statement of defendants’ attorneys in their Motion to Vacate the Default Judgment is that while the pleadings remained in the Clerk’s office, Judge Smith came to the Hancock Circuit Court and entered the default judgment. He finally received these papers on Tuesday, March 11, at his office in Anderson.
On August 25, 1969, the Honorable Carl T. Smith, Special Judge, made the following finding:
“The Court finds the defendants forwarded to the Clerk of this Court and the Clerk of said county received for filing March 10, 1969, the following: Answer of defendants in Two Paragraphs, Motion for Change of Venue from County, Henry, Rush, Shelby, Marion, Hamilton and Madison Counties are now named to a panel from which to strike. The parties are ordered to proceed with the striking according to law.”
GROUND 1. The local rule of the Hancock Circuit Court prohibiting the Clerk from filing pleadings received for that *75 purpose and directing the Clerk to mail same to the Special Judge for filing and custody, is invalid because it is contrary to Indiana law.
The word “filed” has been defined to mean delivery to the proper official. “A paper is filed with the clerk when it is delivered to him for that purpose.” (Emphasis supplied.) Morthland v. Lincoln National Life Insurance Co., (1942) 220 Ind. 692 , 42 N. E. 2d 41 ; Walner v. Caprone (1945), 224 Ind. 267 , 66 N. E. 2d 64 ; Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Morrey, (1909) 172 Ind. 513 , 88 N. E. 932 ; Grabowski v. Benza, (1923) 80 Ind. App. 214 , 140 N. E. 76 . “Filed” has been liberally construed to include delivery to a night watchman at the State Capitol Building. State v. Ensley, (1959) 240 Ind. 472 , 164 N. E. 2d 342 ; Elliott v. Gardner, (1942) 113 Ind. App. 47 , 46 N. E. 2d 702 .
The clerk of a circuit court has a statutory duty to endorse and file all papers received by him. Ind. Ann. Stat. § 49-2706 (Burns’ 1964) ; see 5 I.L.E. Clerk of Courts § 2. The act of filing official documents is ministerial and not a judicial function. It is clearly the intent of § 49-706, supra, and the cases that have considered the definition of filing that when a document or pleading is delivered to the proper authority for filing, a Court cannot circumvent a legislative enactment and existing case law by local court rule. Attorneys and the public have the right to rely on established law in conducting litigation in the courts.
Circuit Courts are authorized to adopt their own local rules, so long as those rules are not repugnant to the laws of the State of Indiana. (Emphasis supplied.) Ind. Ann. Stat. § 4-313 (Burns’ 1968) ; Rooker v. Bruce, (1908) 171 Ind. 86 , 85 N. E. 351 ; Barber v. State, (1925) 197 Ind. 88 , 149 N. E. 896 ; Krutz v. Griffith, (1879) 68 Ind. 444 . The local rule of the Hancock Circuit Court attempts to change existing law as to what constitutes filing and, therefore, is invalid. Rooker v. Bruce, supra. Filed is filed.
*76 The Change of Venue From The County and the other pleadings were then properly filed when received by the Clerk on Monday morning, March 10. These pleadings had been delivered to the Clerk for the purpose of filing. Any action taken thereafter must of necessity consider such fact. Recognizing that this local rule was probably adopted to bring pleadings to the prompt attention of a Special Judge, there is, nevertheless, a pungent odor of illegality emanating from a local court rule which usurps the Clerk’s function. It should be struck down and buried deep in judicial soil.
GROUND 2. The default judgment entered by the Special Judge on March 10, 1969, was void and not voidable because a Motion for Change of Venue From The County was on file at the time the default was entered and the Special Judge had no jurisdiction to enter such a judgment.
Courts act ministerially when granting a change of venue. State ex rel. Lindsey v. Beavers, (1947) 225 Ind. 398 , 75 N. E. 2d 660 . Thus, when a motion for a change of venue is filed, the trial judge loses authority and is without jurisdiction to consider any matter involved in the case, emergencies excepted. State ex rel. Krupa v. Peak (1947), 225 Ind. 164 , 73 N. E. 2d 482 ; State ex rel. Ballard v. Jefferson Cir. Ct., (1947) 225 Ind. 174 , 73 N. E. 2d 489 ; State ex rel. Cornett v. Dearborn Cir. Ct., (1957) 236 Ind. 294 , 140 N. E. 2d 101 . This Court recently held in Michigan Mutual Liability Co. v. Perez (1965), 137 Ind. App. 247, 256 , 207 N. E. 2d 368 , that: “When the application for a change of venue was filed . . . , the trial judge before whom the cause was filed lost jurisdiction except in matters of emergency and which matters need prompt determination.”
Where a defendant’s answer is on file, a judgment cannot be entered against him by default. Firestone v. Firestone, (1881) 78 Ind. 534 . Even where the defendant has failed to answer within the time specified, if the answer is filed before the entry of the default judgment, the default is void. Reeder *77 v. Marshall, (1958) 214 Ore. 154 , 328 P. 2d 773 ; cf. 47 Am. Jur. 2d Judgments § 1169, p. 175. Since authority to render a judgment is absolutely essential to a valid judgment, in the absence of such authority the judgment is void, and not voidable. Michigan Mutual Liability Co. v. Perez, supra; State ex rel. Public Service Comm’n v. Johnson Cir. Ct., (1953) 232 Ind. 501 , 112 N. E. 2d 429 ; Calumet Teaming & Trucking Co. v. Young, (1940) 218 Ind. 468 , 33 N. E. 2d 109 ; 1 Freeman, Judgments (5th ed.) § 226, pp 444-45.
In the instant case, the papers were “filed” before Judge Smith arrived at the Clerk’s office to enter the default. Therefore, a motion for a Change of Venue from the County was properly before him. Consequently, he was without jurisdiction to act in the case, thereby rendering the default judgment void. There is a strong implication in Judge Smith’s entry of August 25, 1969, that he considered the default judgment void because he granted the defendant’s Motion for Change of Venue from the County. Once being made aware of what had transpired, he must have considered the default void because there would be no reason to grant a change of venue if the default judgment was valid. How else can further proceedings in this case be explained ?
Entering a default judgment is drastic judicial action — not to be done lightly. A Court speaks only through its record and it is the duty of the Judge to expedite the business of the Court. State ex rel. Thompson v. March, (1945) 224 Ind. 14 , 64 N. E. 2d 293 .
While it is true the defendants had received notice to plead by a certain date or be defaulted thereafter, they were also represented by counsel of record in a case where the Special Judge resided in a different county from the one in which the case was pending. Under these circumstances, a default judgment should be entered with caution. Otherwise, the entry of a default may be a farce. The incongruous situation may exist, as it did in this case, where pursuant to local rule the Clerk “receives” pleadings but does not file them, one of *78 the plaintiff’s attorneys receives copies of the pleadings before the Special Judge receives them, the Special Judge travels from another county, enters the courtroom and defaults the defendants while the Motion For Change of Venue From The County is pending which deprives him of jurisdiction.
This is not justice by any definition. For the reasons and on the authorities stated above, the judgment should be reversed and this cause tried on the merits.
Note. — Reported in 276 N. E. 2d 160 .