Bahre v. Bahre, 30364

• Decision Date: 27 May 1964
• Docket Number: No. 30364,30364
• Parties: George BAHRE, Appellant, v. Rosemary BAHRE, Appellee.
• Court: Indiana Supreme Court

Page 751

198 N.E.2d 751

245 Ind. 522

George BAHRE, Appellant, v. Rosemary BAHRE, Appellee.

No. 30364.

Supreme Court of Indiana.

May 27, 1964.

Rehearing Denied July 7, 1964.

Harry M. Stitle, Jr., Norman R. Newman, Indianapolis, for appellant.

Sidney A. Horn, John J. Rochford, Paul E. Blackwell, Frank W. Morton, Indianapolis, for appellee.

PER CURIAM.

The appellee herein has filed a motin to dismiss the appeal, which is from three orders of the Johnson Circuit Court growing out of a divorce action in that court. All of these petitions were filed subsequent to an appeal to the Appellate Court taken in the divorce case between the parties, and after the Appellate Court had reversed the trial court on that part of the judgment 'in so far as it grants alimony and support payments' with instructions to grant a new trial on those issues alone. The judgment as to the divorce decree was not contested. Bahre v. Bahre (1962), 133 Ind.App. 567, 181 N.E.2d 639.

The three petitions that were filed in the trial court following the partial reversal on appeal, and which are the subject of this appeal to this court, are listed as follows:

1. Petition for order for payment of expenses, suit money and attorney fees for post trial procedures and appellate review.

2. Petition for support of two minor children pendente lite, new trial and for lump sum award for adequate support from September 28, 1959 to date.

3. Petition for suit money, legal expenses and attorney fees for preparation and new trial of cause.

Although no order was entered consolidating these three separate petitions, nevertheless this appeal is presented to us as if the orders on the three petitions had been consolidated for appeal purposes, and one assignment of errors relates to and attempts to cover the various orders and judgments made on the three petitions. For reasons that appear later, this has caused some confusion with reference to the specifications in the assignment of errors and the petitions to which they apply in some instances.

Part of the motion to dismiss is predicated upon a failure of the transcript to contain a praecipe. However, this has been remedied by a writ of certiorari. Other defects are pointed out in appellant's brief with reference to the failure of the briefs to contain certain references to the transcript pages of certain testimony; that the index of the transcript was not contained in the first pages thereof and the size of the brief filed was not in conformity with the rules of the court. The appellant has asked leave to make corrections. By reason of such request and from an examination of the briefs, we believe the appellant has made a good-faith attempt to comply with the rules of this court and is not prejudiced thereby.

There is, however, a more serious difficulty pointed out in the motion to dismiss, to which the appellant has filed a 'motion in opposition to appellee's motion to dismiss.' Appellee contends that:

1. The orders granted on the first two petitions were final judgments for fixed sums of money, and the record shows no motion for a new trial was filed thereto within the prescribed period from which an appeal may be taken.

2. That the order on the third petition, which was for suit money and expenses for preparation...