Bradburn v. County Dept. of Public Welfare of St. Joseph County, 870A137

Decision Date09 February 1971
Docket NumberNo. 870A137,870A137
Citation266 N.E.2d 805,148 Ind.App. 387
PartiesJesse A. BRADBURN, Appellant, v. COUNTY DEPARTMENT OF PUBLIC WELFARE OF ST. JOSEPH COUNTY, Indiana, and State Department of Public Welfare of Indiana, Appellees.
CourtIndiana Appellate Court

Anthony v. Luber, South Bend, for appellant.

Donald Patrick, South Bend, Theodore L. Sendak, Atty. Gen., George M. Curry, Robert S. Hassett, Deputy Attys. Gen., for appellees.

ON APPELLEE'S MOTION TO DISMISS

PER CURIAM.

This matter is before us on the motion of the appellee, State Department of Public Welfare, to dismiss the appeal. The motion to dismiss alleges as cause therefor that the record of the proceedings does not contain either a motion to correct errors or an assignment of errors.

It appears from the record herein that this cause was submitted to the trial court as an agreed case and that judgment was entered on May 26, 1970.

The appellant's counsel, in reply to the motion to dismiss, states that because this Court on July 1, 1970, held that a motion for new trial is not appropriate following judgment in an agreed case, 1 he did not file a motion to correct errors. This Court held in Equitable that because in an agreed case there is no trial, a motion for new trial serves no purpose, is not appropriate, and therefore the appealing party should have appealed directly to this Court assigning as error the trial court's ruling. The judgment in Equitable was entered on June 13, 1969, and this Court's ruling in Equitable reflected the law under our former procedure concerning the function of a motion for new trial in an appeal from an agreed case. Neither did the appellant file in this Court an assignment of errors as was provided for under our former procedure. Hence, there is no complaint before this Court, and therefore the appellant has failed to invoke the jurisdiction of this Court over this cause.

In the case now before us, the trial court's judgment was entered on May 26, 1970, subsequent to the effective date of the new Indiana Rules of Procedure, and therefore in our consideration of this case, we are bound by the procedural requirements set forth in these rules.

Trial Rule 59(G) provides as follows:

'(G) Motion to correct error a condition to appeal. In all cases in which a motion to correct errors is the appropriate procedure preliminary to an appeal, such motion shall separately specify as grounds therefor each error relied upon however and whenever arising up to the time of filing such motion. Issues which could be raised upon a motion to correct errors may be considered upon appeal only when included in the motion to correct errors filed with the trial court. A motion to correct errors shall not be required in the case of appeals from interlocutory orders, orders appointing or refusing to appoint a receiver, and from orders in proceedings supplemental to execution.'

Appellate Rule 7.2(A) provides as follows:

'(A) Definition. The record of the proceedings shall consist of the following documents:

(1) A certified copy of the motion to correct errors or an assignment of errors.

(a) In all appeals from a final judgment, a certified copy of the motion to correct errors filed with the trial court shall constitute for all purposes the assignment of errors. No assignment of error other than the motion to correct errors shall be included in the record.

(b) In all appeals from interlocutory orders, there shall be included instead of the certified copy of the motion to correct errors a specific assignment of the errors alleged.' (Our emphasis.)

There is no question but that the judgment being appealed in this case is a final judgment, and not an interlocutory order, an order appointing or refusing to appoint a receiver, or an order in proceedings supplemental to execution. In reading...

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16 cases
  • Ralston v. State, 1-580A107
    • United States
    • Indiana Appellate Court
    • October 29, 1980
    ...errors has been called the "complaint in the appellate tribunal." P-M Gas & Wash Co., supra ; Bradburn v. County Department of Public Welfare, (1971) 148 Ind.App. 387, 266 N.E.2d 805. However, it is only a complaint in the sense that filing a certified copy of it, along with the rest of the......
  • Kelly v. Bank of Reynolds
    • United States
    • Indiana Appellate Court
    • December 16, 1976
    ...TR. 59 was a broad and flexible tool for seeking relief from an error-infected judgment. Thus in Bradburn v. Cnty. Dept. of Public Welfare (1971), 148 Ind.App. 387, 390, 266 N.E.2d 805, 806, this Court 'Under TR. 59(A) the motion to correct errors can present to the trial court almost any c......
  • Moore v. Spann
    • United States
    • Indiana Appellate Court
    • July 18, 1973
    ...with the trial court is necessary to give an Indiana appellate tribunal jurisdiction of the appeal: Bradburn v. County Department of Public Welfare, (Ind.App.1971) 266 N.E.2d 805; Indiana State Personnel Board v. Diggs, (Ind.1971) 272 N.E.2d 868; Gray v. State, (Ind.1971) 269 N.E.2d 535; La......
  • City of Mishawaka v. Stewart
    • United States
    • Indiana Appellate Court
    • January 31, 1973
    ...an appeal from a final judgment. Lows v. Warfield, Ind.App., 259 N.E.2d 107 (1970); Bradburn v. County Department of Public Welfare of St. Joseph County, Ind.App., 266 N.E.2d 805 (1971). Therefore, the Board followed the correct procedure in filing a motion to correct errors with the trial ......
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