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

• Citation: 266 N.E.2d 805,148 Ind.App. 387
• Decision Date: 09 February 1971
• Docket Number: No. 870A137,870A137
• Parties: Jesse A. BRADBURN, Appellant, v. COUNTY DEPARTMENT OF PUBLIC WELFARE OF ST. JOSEPH COUNTY, Indiana, and State Department of Public Welfare of Indiana, Appellees.
• Court: Court of Appeals of Indiana

Page 805

266 N.E.2d 805

148 Ind.App. 387

Jesse A. BRADBURN, Appellant, v. COUNTY DEPARTMENT OF PUBLIC WELFARE OF ST. JOSEPH COUNTY,

Indiana, and State Department of Public Welfare of

Indiana, Appellees.

No. 870A137.

Appellate Court of Indiana, In Bank.

Feb. 9, 1971.

Rehearing Denied March 17, 1971.

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...