352 N.E.2d 91 (Ind.App. 2 Dist. 1976), 2-1275A357, P-M Gas & Wash Co., Inc. v. Smith

Docket Nº2-1275A357.
Citation352 N.E.2d 91
Party NameP-M GAS & WASH COMPANY, INC., an Indiana Corporation, Appellant and Cross-Appellee, v. Ronald SMITH b/n/f Clara Smith and Richard Smith, Appellees and Cross-Appellants.
Case DateJuly 29, 1976
CourtCourt of Appeals of Indiana

Page 91

352 N.E.2d 91 (Ind.App. 2 Dist. 1976)

P-M GAS & WASH COMPANY, INC., an Indiana Corporation,

Appellant and Cross-Appellee,

v.

Ronald SMITH b/n/f Clara Smith and Richard Smith, Appellees

and Cross-Appellants.

No. 2-1275A357.

Court of Appeals of Indiana, Second District.

July 29, 1976

Opinion Super seded, see 375 N.E.2d 592.

Richard S. Ewing, Stewart, Irwin, Gilliom, Fuller & Meyer, Indianapolis, for appellant.

Daniel F. Cummings, Cummings and Emery, Indianapolis, for appellees.

PER CURIAM.

This cause is pending before the Court on the appellant's Petition to Dismiss Purported

Page 92

Cross-Appeal and Assignment of Errors Filed by the Appellees-Cross-Appellants and to Strike Portions of Appellees' Brief, and on the Appellees' Objections to Petition to Dismiss .

The appellant's Motion to Dismiss Cross-Appeal alleges the assignment of cross errors was not timely filed and therefore the cross-appeal should be dismissed.

Trial Rule 59(D), which provides for filing cross errors, reads as follows:

'(D) Motion to correct errors on affidavits--Opposing affidavits, cross-errors and other matters. When a motion to correct errors is based upon evidence outside the record, the cause must be sustained by affidavits showing the truth thereof served with the motion. The opposing party has fifteen (15) days after service of affidavits in which to serve opposing affidavits and fifteen (15) days after service of the motion in which to file cross-errors or in which to assert relevant matters relating to the kind of relief to be granted. The period for filing affidavits may be extended for an additional period not exceeding thirty (30) days for good cause shown or by written stipulation.'

The appellees did not file their Assignment of Cross Errors within fifteen days after the service upon them of the appellant's Motion to Correct Errors. Instead, the appellees included their assignment of cross errors and cross-appeal as a part of their appellees' brief on the merits filed in this Court.

The appellees urge us to construe that part of Rule TR. 59(D) pertaining to filing cross errors as to cause it to be applicable only in those instances in which the motion to correct errors is based on evidence outside the record. Specifically, appellees argue:

'. . . Trial Rule 59(D) requires that when a Motion to Correct Errors is filed upon evidence outside the...

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5 practice notes
  • 363 N.E.2d 1055 (Ind.App. 2 Dist. 1977), 2--975A242, Arnold v. Parry
    • United States
    • Indiana Court of Appeals of Indiana
    • June 13, 1977
    ...judgment on the evidence by failing to timely file assignment of cross-errors. P-M Gas & Wash Co., Inc. v. Smith (1976), Ind.App., 352 N.E.2d 91. Even if retroactive effect is not given to this interpretation of TR 59(D), Defendants are not harmed as we affirm. [2] Defendants also claim......
  • 375 N.E.2d 592 (Ind. 1978), 478S71, P-M Gas & Wash Co., Inc. v. Smith
    • United States
    • Indiana Supreme Court of Indiana
    • April 27, 1978
    ...from the Court of Appeals. The petition to transfer challenges the decision in P-M Gas & Wash Co., Inc. v. Smith (1976), Ind.App., 352 N.E.2d 91, in which the Court of Appeals dismissed cross-errors assigned by petitioner, Smith. It presents a procedural nightmare. [268 Ind. 299] The fa......
  • 628 N.E.2d 1251 (Ind.App. 4 Dist. 1994), 56A04-9210-CV-358, Indiana Ins. Co. v. Allis
    • United States
    • Indiana Court of Appeals of Indiana
    • February 16, 1994
    ...86, 91. Therefore, an insurer was free to establish limits on the types of hit and run coverage, if any, it would offer. Taylor, supra, 352 N.E.2d at 91. We must presume that when our legislature replaced the original Act, I.C. 27-7-5-1, with our current Act, I.C. 27-7-5-2 et seq., it was a......
  • 383 N.E.2d 357 (Ind.App. 2 Dist. 1978), 2-1275A357, P-M Gas & Wash Co., Inc. v. Smith
    • United States
    • Indiana Court of Appeals of Indiana
    • December 7, 1978
    ...for failure to comply with Ind.Rules of Procedure, Trial Rule 59(D). P-M Gas & Wash Co., Inc. v. Smith (2d Dist. 1976) Ind.App., 352 N.E.2d 91. That decision was reversed by the Supreme Court and the case remanded to this court with directions to determine the cross-appeal on its merits......
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5 cases
  • 363 N.E.2d 1055 (Ind.App. 2 Dist. 1977), 2--975A242, Arnold v. Parry
    • United States
    • Indiana Court of Appeals of Indiana
    • June 13, 1977
    ...judgment on the evidence by failing to timely file assignment of cross-errors. P-M Gas & Wash Co., Inc. v. Smith (1976), Ind.App., 352 N.E.2d 91. Even if retroactive effect is not given to this interpretation of TR 59(D), Defendants are not harmed as we affirm. [2] Defendants also claim......
  • 375 N.E.2d 592 (Ind. 1978), 478S71, P-M Gas & Wash Co., Inc. v. Smith
    • United States
    • Indiana Supreme Court of Indiana
    • April 27, 1978
    ...from the Court of Appeals. The petition to transfer challenges the decision in P-M Gas & Wash Co., Inc. v. Smith (1976), Ind.App., 352 N.E.2d 91, in which the Court of Appeals dismissed cross-errors assigned by petitioner, Smith. It presents a procedural nightmare. [268 Ind. 299] The fa......
  • 628 N.E.2d 1251 (Ind.App. 4 Dist. 1994), 56A04-9210-CV-358, Indiana Ins. Co. v. Allis
    • United States
    • Indiana Court of Appeals of Indiana
    • February 16, 1994
    ...86, 91. Therefore, an insurer was free to establish limits on the types of hit and run coverage, if any, it would offer. Taylor, supra, 352 N.E.2d at 91. We must presume that when our legislature replaced the original Act, I.C. 27-7-5-1, with our current Act, I.C. 27-7-5-2 et seq., it was a......
  • 383 N.E.2d 357 (Ind.App. 2 Dist. 1978), 2-1275A357, P-M Gas & Wash Co., Inc. v. Smith
    • United States
    • Indiana Court of Appeals of Indiana
    • December 7, 1978
    ...for failure to comply with Ind.Rules of Procedure, Trial Rule 59(D). P-M Gas & Wash Co., Inc. v. Smith (2d Dist. 1976) Ind.App., 352 N.E.2d 91. That decision was reversed by the Supreme Court and the case remanded to this court with directions to determine the cross-appeal on its merits......
  • Request a trial to view additional results