Augustine v. First Federal Sav. and Loan Ass'n of Gary, 179S10

Citation270 Ind. 238,384 N.E.2d 1018
Decision Date15 January 1979
Docket NumberNo. 179S10,179S10
PartiesR. A. AUGUSTINE d/b/a South Shore Insurance, South Shore Building and Mortgage Company and South Shore Securities Corporation, and Thirteen Hundred Broadway Corporation, an Indiana Corporation, and Frank L. Korpita and Mary Agnes Korpita, husband and wife, Hobart Country Club Development Corporation, an Indiana Corporation, Title Corporation, and Norman Levenberg and Levenberg, his wife, whose true Christian name is unknown, Appellants, v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF GARY, and Buckeye Union Insurance Company, and Eichel Lovelace and Patricia Lovelace, Appellees.
CourtSupreme Court of Indiana

Albert C. Hand and Michael L. Muenich, Hand, Muenich & Rodovich, Hammond, for appellants.

Peter G. Koransky, of Spangler, Jennings, Spangler & Dougherty, Gary, for appellee.

GIVAN, Chief Justice.

OPINION ON PETITION TO TRANSFER

In May, 1959, Eichel and Patricia Lovelace purchased real estate from Thirteen Hundred Broadway Corporation under a conditional sales contract. The property had previously been mortgaged to First Federal Savings and Loan Association of Gary. The building on the land was insured with Buckeye Union Insurance Company by R. A. Augustine, an insurance agent, doing business as South Shore Insurance, South Shore Building & Mortgage Company, and South Shore Securities Corporation. The insurance policy expired on December 5, 1971, and seven days later the building was destroyed by fire.

The Lovelaces brought an action against Thirteen Hundred Broadway Corporation, First Federal Savings and Loan Association, R. A. Augustine (d/b/a South Shore Insurance), and Buckeye Union Insurance Company in January, 1972. Plaintiffs dismissed with prejudice their complaint against Buckeye in October, 1972. Then, in January, 1974, defendant South Shore filed a third party complaint against Buckeye and First Federal. The trial court granted summary judgment in favor of Buckeye and First Federal on the third party complaint and also granted a summary judgment in favor of First Federal on a counterclaim against Thirteen Hundred for foreclosure on the mortgage. The Court of Appeals reversed all three summary judgments on the ground that the depositions taken in the case manifested genuine issues of material fact. Augustine v. First Federal Savings & Loan Association of Gary (1978) Ind.App., 373 N.E.2d 181. The Court of Appeals noted that the trial court had not opened these depositions and thus erred in not considering all of the available evidence. Only Buckeye had petitioned this Court to transfer the cause and, therefore, we consider only the summary judgment motion that relates to Buckeye.

Initially, we must consider a procedural question not addressed by the Court of Appeals, except by Judge Garrard in his dissenting opinion: That is, whether publication of the depositions was required to place them properly before the court for consideration in ruling on the motions.

In 1881, the legislature enacted the following statute:

"Publication, when had. Depositions, after being filed, may be published by the clerk, at the request of either party, after giving the other, his agent or attorney, reasonable notice of the time of publication, or they may be published by order of the court, on the motion of either party."

Burns 2-1520.

The courts in Indiana have applied and utilized this rule through the years in various situations. See Mitten v. Kitt (1888) 118 Ind. 145, 20 N.E. 724; Stamets v. Wilson (1928) 89 Ind.App. 403, 164 N.E. 300. The most recent case addressing the issue of publication of depositions was Swartzell v. Herrin (1969) 144 Ind.App. 611, 248 N.E.2d 38. In that case, the trial court had granted the defendants' motion for summary judgment. The motion itself referred to the depositions of the plaintiffs and the trial court purportedly took these into consideration. However, the depositions were never published. The Appellate Court, after quoting from the statute, correctly held "In order for a conditional examination to become part of the record or to be before the court for its use, the conditional examination must be published. This is done by order of the court upon motion of any person or party interested.

Publication means the breaking of the sealed envelope containing the conditional examination and making it available for use by the parties or the court.

In this case no order of publication was made. The conditional examinations were not published, as evidenced by the fact that they remained sealed in their envelopes. Thus, they clearly could not have been a part of the record before the court on the motion for summary judgment."

144 Ind.App. at 617-8, 248 N.E.2d at 42.

In 1969, nonetheless, the legislature removed this statute from the books when the new rules of civil procedure were enacted. The precise reasons for this deletion are unclear.

Nevertheless, this Court has authority to adopt rules of procedure governing the conduct of litigation in our judicial system. State ex rel Blood v. Gibson Cir. Ct. (1959) 239 Ind. 394, 157 N.E.2d 475. The procedural rules and cases decided by this Court take precedence over any conflicting statutes. IC § 34-5-2-1 (Burns 1973); Matter of Public Law No. 305 and Public Law No. 309 (1975) 263 Ind. 506, 334 N.E.2d 659.

In the case at bar, the majority of the Court of Appeals did not address the question of whether publication of the depositions was required. That court broke the seals on the depositions that had been filed, read them, and determined that contained therein was testimony which raised a genuine issue of material fact between Buckeye and South Shore regarding the apparent authority of South Shore, the reliance of the Lovelaces upon Buckeye, and the delegation of the duty to notify. 373 N.E.2d at 183 n.1. Accordingly, the Court of Appeals reversed the trial court's sustaining of the motions for summary judgment. Judge Garrard, however, in his dissenting opinion, states that the new rules of civil procedure fail to make publication of depositions a significant event and states, "Moreover, I can perceive no valid reason outside the rules for maintaining 'publication' . . . It is rather an anachronism and should be dispensed with." Augustine v. First Federal Savings & Loan Association of Gary (1978) Ind.App., 373 N.E.2d 181, 184 (Garrard, J., dissenting).

We disagree with this conclusion. We hereby hold that publication of a deposition is still required in order to place the deposition before the court. Until the deposition is published, by order of the court upon a motion of either party, the deposition cannot be taken into account by the court in ruling on any motions of the parties.

There is a sound and practical reason for requiring publication. Under our rules, at the time a deposition is taken, a party need not object to questions on the basis of inadmissibility. Rather, TR. 32(B) permits a party to wait and make his objection at the trial or hearing when the deposition is read into evidence or otherwise used. Were we to dispense with the publication requirement, the very essence of TR. 32(B) could not be implemented. Trial judges could examine depositions at will without regard to the possibility that they might contain objectionable matter.

Moreover, IC § 34-1-16-1, 2 (Burns 1973) (formerly Burns §§ 2-1527 & 2-1528) have been continued in the present code in their original form as enacted in 1881. These statutes recognize the publication requirement and tax the costs of publication to the moving party. It may be inferred from these two statutes that the General Assembly did not purposely eliminate the publication requirement in its 1969 enactment. Indeed, the language of IC § 34-1-16-1 that a deposition "may, at any time . . . be published by order of the court" is identical to portions of Burns § 2-1520 heretofore quoted. We, therefore, hold that before a trial court can consider testimony in...

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