Bodine v. Hiler , 463 N.E.2d 539 ( 1984 )

GARRARD, Judge.

Richard Bodine and Howard Hostetler filed petitions contesting certain elections held in Elkhart County, Indiana, in November 1982. The trial court dismissed the petitions as not timely filed and this appeal resulted.

A general election was held in Elkhart County on November 2, 1982. On November 17, 1982, Bodine filed a petition to contest the election, naming his opponent in the race for United States Representative from the Third District, John Hiller, as respondent. Likewise, on November 17, Hos-tetler filed a petition to contest the election of Dick Bowman as Sheriff of Elkhart County. The petitions were filed pursuant to IC 8-1-28-1 et seq. (1982 Ed.). Hiler and Bowman moved to dismiss the petitions, alleging inter alia that the petitions were filed between 12:30 p.m. and 1:30 p.m. on November 17, 1982 and therefore were not timely filed because IC 3-1-1-2.5 (1982 Ed.) requires that a filing be made by noon of the final day provided for that filing. The trial court granted the motion and dismissed the petitions.

We commence by observing that the common law made no provision for contesting elections. State ex rel. Robertson v. Cir.Ct. of Lake Co. (1938), 215 Ind. 18, 17 N.E.2d 805. The statute permitting such contests provides a special statutory proceeding. State ex rel. Lord v. Sullivan (1938), 214 Ind. 279, 15 N.E.2d 384. Thus, the requirements imposed by the statute are jurisdictional. Marra v. Clapp (1970), 255 Ind. 97, 262 N.E.2d 630; State ex rel. Howard v. Lake Cir. Ct. (1954), 233 Ind. 459, 121 N.E.2d 647.

Secondly, it must be recalled that it is our duty to give effect to the plain and manifest meaning of the language used by the legislature. Ott v. Johnson (1974), 262 Ind. 548, 319 N.E.2d 622.

"It is only when the language of the statute is ambiguous that the courts should search for legislative intent."

262 Ind. at 552, 319 N.E.2d at 624.

Thus, where the language used is clear and unambiguous, this court may not substitute language which it feels the legislative body may have intended. Ott, supra; State v. Squibb (1908), 170 Ind. 488, 84 N.E. 969.

In the case before us we are concerned with a 1975 amendment to the election laws.¹ The provision was added to the "general provisions" chapter of the statute. It states:

"Whenever a final day for a particular filing is provided by law, but no final hour of that day is specified, the final hour for the receipt of the particular filing is twelve o'clock noon, prevailing time, of the final day of filing."

The section does not purport to apply merely to declarations of candidacy, although the legislature could quite easily have so restricted it had it desired to do so. Instead the section is simply made applicable to any particular filing where a final day but no final hour by which the filing must be made has been provided by law. The clear and unambiguous meaning of the language used is that it applies to all filings under the act which are subject to date deadlines.²

The provisions concerning election contests for district and county offices appear at IC 8-1-28-1 through 8. It appears that the critical provision is IC 3-1-28-4(a) which provides in pertinent part:

"Any person desiring to contest any election ... shall file, in the office of the clerk of the cireuit court of the proper county, his petition ....

* # * * # *

Such petition shall be verified by the contestor and shall be filed within fifteen (15) days after the day on which the election is held."

Such a petition thus is a "filing" within the meaning of the election code. When appellants failed to file their petitions by noon on the fifteenth day following the election ³ the circuit court failed to acquire jurisdiction of the cases.

Two other points raised by appellants must be considered.

First they assert the court erred in not construing their petition as one for declaratory judgment. We disagree. Their petition clearly attempted to state the statutory claim of an election contest. The statute provides the remedy.

We do not dispute that Indiana Rules of Procedure, Trial Rule 57 was intended to and did relax the historical prohibitions in Indiana against use of declaratory judgment where there was another remedy possible. See, eg., Bryarly v. State (1953), 232 Ind. 47, 111 N.E.2d 277; Brindley v. Meara (1935), 209 Ind. 144, 198 N.E. 301. Even so, the liberalized view of declaratory judgment was not intended to permit a party an alternative forum when he failed to comply with the necessary requirements to litigate his claim under a specific statutory procedure provided for the adjudication of such claims. Thompson v. Medical Licensing Board (1979), 180 Ind. App. 333, 389 N.E.2d 43, cert. den. 449 U.S. 937, 101 S.Ct. 335, 66 L.Ed.2d 160. Assuming arguendo that the court might have treated the claim as one for declaratory judgment, there has been no showing that it abused its discretion in refusing to do so. Thus, even under the latitude recognized in Thompson, supra, there was no reversible error.

Finally, appellants assert that because the trial court considered the affidavits of late filing given by the chief deputy clerk, the motion should have been treated as one for summary judgment. They assert that statutes of limitation are easily waived and that they were entitled to notice and hearing upon the motions. We agree in part.

Initially we note that TR 12(B) refers only to failure to state a claim pursuant to TR 12(B)(6) in its provision that when "matters outside the pleading" are considered, the motion "shall be treated as one for summary judgment." Thus, the rule does not purport to require summary judgment treatment where the question is dismissed for lack of jurisdiction under TR 12(B)(1). Indeed, concerning an attack for lack of jurisdiction which was presented as a motion for summary judgment, the court in Dept. of Revenue v. Mumma Bros. Drilling Co. (1977), 173 Ind.App. 487, 364 N.E.2d 167, aff'd. after remand 411 N.E.2d 676 (Ind.App.1980) held that the court should have treated the motion as a motion to dismiss pursuant to TR 12(B)(1) and should have dismissed the claim.

On the other hand it is apparent that the jurisdictional question is one of jurisdiction of the particular case. As such, the defect can under appropriate circumstances be waived. Bd. of Trustees of Town of New Haven v. City of Fort Wayne (1978), 268 Ind. 415, 375 N.E.2d 1112.

On this basis we believe the appellants were entitled to notice and hearing before the court considered and ruled upon the motion. TR 6(D); cf. Otte v. Tessman (1981), Ind., 426 N.E.2d 660. In Ofte albeit dealing with a summary judgment, the Supreme Court rejected this court's view that in order to secure a reversal the party denied full notice and formal hearing should have to demonstrate some specific harm he incurred as a result of the failure. The court held instead that prejudice will be presumed on appeal. 426 N.E.2d 661.

Accordingly, the decision is vacated and remanded to the trial court with instructions to grant notice and hearing. In the event it then appears that appellants failed to properly invoke the jurisdiction of the court as herein discussed, judgment of dismissal should be entered.

Reversed and remanded.

STATON, P.J., dissents and files separate opinion. CONOVER, P.J. (sitting by designation) concurs.

1 . Public Law 3, Acts of 1975 contained one section. The title provided, "An act to amend IC 1971, 3-1-1 by adding a new section 2.5 concerning filings under the Indiana election laws."

2 . Nowhere does the statute, itself, provide a special definition of "filing."

3 . This appears by affidavit and is undisputed by either appellant. Contrary to the position taken by the dissent, we find that IC 3-1-28-6 which calls for application of the regular rules of civil procedure, and might thus arguably extend the filing deadline, is inapplicable. That section rather clearly applies only after an election contest has been properly initiated in the circuit court. It therefore cannot properly be invoked to alter the prescribed procedure for initiating the contest.