Aldridge v. Aldridge
| Decision Date | 21 February 1968 |
| Docket Number | No. 1,No. 20709,20709,1 |
| Citation | 233 N.E.2d 781,142 Ind.App. 289 |
| Parties | Ralph E. ALDRIDGE, Appellant, v. Marianna D. ALDRIDGE and Raymond H. Zirkle, Appellees |
| Court | Indiana Appellate Court |
Bayliff, Harrigan & Cord, Kokomo, for appellant.
Max C. Shirley, Kokomo, for appellees.
This is an appeal from the Howard Superior Court. The action below was brought by the appellant against the trustee for distribution of certain trust funds. The appellee-trustee filed a counterclaim for fees as trustee and attorney fees for himself. The co-appellee also filed a counterclaim in four (4) paragraphs.
The court below entered a summary judgment in favor of the co-appellee, Marianna D. Aldridge. This summary judgment was entered on the 16th of October, 1966, a motion for a new trial was filed and was overruled by the court on December 1, 1966. The record shows that the transcript and assignment of errors were filed in this court on February 3, 1967.
In the dissenting opinion, in the case of Kapusta v. De Puy Mfg. Co. (1967), Ind.App. 229 N.E.2d 828, 832, Judge Faulconer held that a summary judgment was not a trial, and that the transcript and assignment of errors should be filed within ninety (90) days from the date of the entry of the summary judgment by the trial court, and not from the date of the court's ruling on a motion for a new trial.
After an examination of that dissenting opinion and a further review of the authorities in other jurisdictions, and in the Federal Court, we conclude that the motion for a new trial was improper, as the summary judgment proceeding is not a trial. Collins v. Toombs (1946), 271 App.Div. 160, 63 N.Y.S.2d 545; Weisberg v. Perl (1954), Fla., 73 So.2d 56; Otteman v. Interstate Fire and Casualty Company (1960), 171 Neb. 148, 105 N.W.2d 583; Parmelee v. Chicago Eye Shield Co. (1946), 8 Cir., 157 F.2d 582, 168 A.L.R. 1130.
We conclude, therefore, that the appellant has not complied with the provisions of Rule 2--2 of the Rules of the Supreme Court of Indiana and that, therefore, this appeal should be dismissed.
Appeal dismissed.
Appellee Marianna D. Aldridge was granted summary judgment by the trial court, and this appeal questions the correctness of that ruling. We would affirm that judgment. Affirmance would have the same ultimate effect on the parties as a dismissal, but we are of the opinion that this case should be decided on its merits.
Prior to October 11, 1960, Ralph E. and Marianna D. Aldridge held mortgages on real estate in Kokomo, Howard County, Indiana. On that date they entered into an agreement with Raymond H. Zirkle whereby Mr. Zirkle was to act as their attorney in fact for the express purpose of releasing the mortgages, and obtaining proceeds therefrom in cash and notes. The principal parties agreed that they were joint tenants of the notes, mortgages, and proceeds, which were to be held by Mr. Zirkle in trust until such time as Mr. and Mrs. Aldridge agreed upon the method of disbursement. If the details could not be mutually agreed upon, the trustee was to retain possession until a court of competent jurisdiction fixed a means of distribution.
Marianna D. Aldridge was granted a divorce from Ralph E. Aldridge on July 26, 1962, by the Circuit Court of Dade County, Florida. From that time forward, they became tenants in common of the property and money still held by their trustee, Raymond Zirkle, in Howard County, Indiana.
Between December, 1963, and March, 1964, the trustee received the sum of $55,000 in full satisfaction of the note and mortgages. From time to time he has paid a fraction of those proceeds, in equal portions, to the Aldridges, pursuant to their mutual agreement. At the time the original action was commenced, Mr. Zirkle retained a balance of $33,791.66, which was on deposit in his trust account at the Union Bank and Trust Company in Kokomo.
The original action was brought in the Howard Circuit Court, which had jurisdiction over the subject matter and the defendants, by Ralph E. Aldridge to compel payment over to him of $16,895.83, representing exactly one-half the funds held in trust. Named in that action as defendants were Marianna D. Aldridge and Raymond H. Zirkle.
Counter claims were filed by both defendants. Raymond H. Zirkle prayed for a reasonable sum for his services as trustee. Marianna D. Aldridge prayed for half of the funds held in trust, which may be described as the portion to which appellant Ralph E. Aldridge has not laid claim. Mrs. Aldridge's cross-complaint also contained separate paragraphs praying for past and future support for two minor children born during the marriage of the principal parties, and for a separate...
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... ... To support his position that such a 'divestiture' violated due process, Lewis cites only Aldridge v. Aldridge (1968), 142 Ind.App. 289, 233 N.E.2d 781, in which this court initially dismissed an appeal on procedural grounds, but subsequently ... ...
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...where there has been no trial. Meier v. Social Security Administration (1957), 237 Ind. 421, 146 N.E.2d 239; Aldridge v. Aldridge (1968) Ind.App., 233 N.E.2d 781. The difficulty with this general rule is that in practice there is no uniformly applicable definition of a 'trial'. In Indiana, ......
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...well resolved and was binding at the time the appellant received a summary judgment against it. In the case of Aldridge v. Aldridge (1968), 142 Ind.App. 289, 233 N.E.2d 781, the Appellate Court overruled a prior case allowing the filing of a motion for new trial by saying 'The court below e......
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...The court is not permitted to weigh the testimony or ascribe credibility to the witnesses. The issues are not tried. Aldridge v. Aldridge, (Ind.App.1968) 233 N.E.2d 781; Verplank v. Commercial Bank of Crown Point, (Ind.App.1969) 251 N.E.2d 52; Houston v. First Federal Sav. & Loan Ass'n. of ......