Brindle v. Anglin, 3--1172A84

• Decision Date: 15 May 1973
• Docket Number: No. 3--1172A84,3--1172A84
• Parties: Earl BRINDLE et al., Appellants, v. Glen ANGLIN and Elmer S. Anglin, Appellees.
• Court: Indiana Appellate Court

Page 860

295 N.E.2d 860

156 Ind.App. 219

Earl BRINDLE et al., Appellants, v. Glen ANGLIN and Elmer S. Anglin, Appellees.

No. 3--1172A84.

Court of Appeals of Indiana, Third District.

May 15, 1973.

Rehearing Denied July 25, 1973.

Douglas E. Miller, Barrett, Barrett & McNagny, Fort Wayne, Robert C. Probst, Probst & Probst, Kendallville, for appellants.

Kenneth A. King, Kendallville, for appellees.

SHARP, Judge.

This case has a long judicial history which commenced when the Appellant, Earl Brindle, filed a complaint in replevin in the DeKalb Circuit Court on December 21, 1961 naming Appellees, Glen Anglin and Elmer S. Anglin as defendants. In that case Anglins filed two paragraphs of answer, the first in general denial and a second paragraph setting up the defense of settlement and compromise. The cause was submitted to the DeKalb Circuit Court which entered its findings and judgment on January 4, 1963. Said judgment was for the Appellant Brindle on his replevin complaint and a money judgment for Brindle of $325.00 damages for unlawful detention. A money judgment of $3750.00 was then entered for Anglins and against Brindle on the basis of allegations in said second paragraph of Anglins' answer. Brindle was given the alternative of paying the $3750.00 or delivery to Anglin certain farm machinery within ninety days. The replevin bond filed was continued until that part of the judgment in favor of Anglin was effected.

Motion was duly made to modify the judgment entered on January 4, 1963. Thereafter on March 15, 1963 an entry was made in the DeKalb Circuit Court modifying the above judgment as follows:

'The motion of the plaintiff to strike the findings of the Court is now sustained in part, in that the words, 'recover from the plaintiff the sum of $3,750.00 or in the alternative, Glen Anglin, is entitled to', in Paragraph 2 of the findings of the Court be deleted; that the words, 'that the plaintiff shall have the option to either pay said sum of $3,750.00 to the defendant Glen Anglin or to deliver said above described items of new farm machinery and equipment to said defendant Glen Anglin, said option to be exercised and performed by the plaintiff within 90 days from the date of this finding and judgment', in Paragraph 2 of the findings shall be deleted in its entirety; that all remaining portions of plaintiff's motion to strike the findings of the Court are over-ruled, to which ruling of the Court the plaintiff objections and excepts.

The motion of the plaintiff to modify the judgment herein is submitted to the Court for hearing and the Court now sustains said motion in the following particulars, to-wit: in that the words 'in the sum of $3,750.00, or receive', be deleted from Paragraph 2 of said judgment and that the words, 'and said defendant shall receive', shall be inserted in Paragraph 2 of said judgment in the place of the words above striken; that the words, 'that the plaintiff shall have the option to either pay said judgment of $3,750.00 to said defendant Glen Anglin or to deliver said above described items of new farm machinery and equipment to said defendant Glen Anglin, which option shall be exercised and performed within 90 days from the date of this judgment', shall be deleted from Paragraph 2 of said judgment; and that Paragraph 3 of said judgment be deleted in its entirety; and that all remaining portions of plaintiff's motion to modify the judgment are now by the Court overruled, to which ruling of the Court the plaintiff objects and excepts.'

Appeal bond was fixed at $3750.00 and Brindle filed appeal bond with Floyd A. Gause and Dale Herendeen as sureties, which bond was approved.

An attempt was made by Brindle to appeal the judgment of March 15, 1963 to the Appellate Court of Indiana. On November 24, 1964 that court rendered an opinion designated as Brindle v. Anglin, 202 N.E.2d 279 (1964). On transfer our Supreme Court, in a per curiam opinion, stated at 246 Ind. 601, 208 N.E.2d 476:

'The opinion of the Appellate Court fails to consider a primary issue in the case, presented by appellees' motion to dismiss. Therefore, transfer of the case is granted, under Rule 2--23(4)(a) of this court.

The motion to dismiss is predicated upon the fact that the Chief Justice of the Appellate Court granted a second extension of time in which to file transcript and assignment of errors, such second petition having been filed 13 days after the expiration of the time previously granted by the Appellate Court on the first petition for extension of time.

The motion to dismiss was denied pending briefing of the case on the merits.

However, as above noted, the Appellate Court in its opinion failed to consider this substantial issue, and considered the case solely upon the merits, by which procedure it contravened the ruling precedent of this court to the effect that the timely filing of a transcript and assignment of errors is jurisdictional.

In this case the only excuse given for the failure to timely file a second petition for extension of time was the fact that one of the members of the firm prosecuting the appeal was in the hospital. However, from the record it appears that the other member of the firm, Robert C. Probst, took an active part in the trial of the cause and, in the Appellate Court by his verified statement, procured the first extension of time within which to file transcript and assignment of errors.

We therefore accept transfer and order the cause dismissed for failure to comply with Rule 2--2 of this court.

Transfer accepted. Appeal dismissed.'

The net effect of this action was to render the previous purported opinion of the Appellate Court of November 24, 1964 as a nullity. The question we must decide here is the validity and effect on the March 15, 1963 judgment entered in the DeKalb Circuit Court.

In January 1969, pursuant to an execution issued, Anglin paid Brindle the sum of $325.00 and interest as full satisfaction of that part of the March 15, 1963 judgment. Thus there is no issue that such judgment was at least partially valid.

This present case was commenced when Anglins filed on April 12, 1967 a complaint on appeal bond designating Brindle, Gause and Herendeen as defendants therein. The critical language of the appeal bond is:

'The condition of the above obligation is that whereas heretofore on the 4th day of January, 1963, the said Glen Anglin recovered a judgment against the said Earl Brindle in the DeKalb Circuit Court for the sum of and recovery of certain personal property therein described, plus one-half the costs of the suit, from which judgment the said Earl Brindle is appealing to the Appellate Court of Indiana.

Now, if said Earl Brindle shall duly prosecute said appeal and abide by and pay the judgment appealed from said costs in the event such judgment be affirmed against him, or in the event such appeal be not prosecuted, or if such appeal be dismissed, then the above obligation shall be null and void; otherwise to be and remain in full force and virtue in law.'

After numerous pleadings and proceedings the Noble Circuit Court, to which this case was venued, on November 2, 1971, the trial court entered summary judgment in favor of Anglins and against Brindle, Gause and Herendeen for $3750.00 on said appeal bond. The appeal of that summary judgment has been duly perfected here.

In oral argument here counsel for all parties suggest that there was no dispute as to the facts and this appeal concerned only a question of law. This concurrence of counsel is reflected in well established case law to the effect that the operation and effect of a judgment are purely matters of law. Sullivan State Bank v. First National Bank, 82 Ind.App. 419, 146 N.E. 403 (1925). The trial court had before it a transcript of the proceedings in the DeKalb Circuit Court as well as the proceedings in the Appellate Court and Supreme Court in 1964 and 1965.

Here we must determine the nature and effect of the judgment entered in the DeKalb Circuit Court on March 15, 1963. Unless it is void on its face it stands as a final judgment, from which no appeal was taken. We base this conclusion on the dismissal of the appeal by our Supreme Court. See 208 N.E.2d 476. If the judgment of March 15, 1963 was not void on its face, it is elementary that this proceeding cannot be used as a vehicle to belatedly appeal from it. In such case this proceeding would be considered a collateral attack on a judgment that is at most only voidable.

There is no question that the DeKalb Circuit Court has jurisdiction over the subject matter and the parties to this action on March 15, 1963. It also had jurisdiction over the particular controversy. There is also no question that the rights of the sureties on the appeal bond are dependent on a determination of the legal question presented in this appeal. The validity and obligation under the appeal bond turns on whether underlying judgment is void. In State ex rel. Stone v. United States Fidelity and Guaranty Co., 119 Ind.App. 63, 72, 78 N.E.2d 881, 886 (1948), Judge Draper said:

'. . . a bond exacted in a judicial proceeding by a court having no jurisdiction of the action is not only void, but no recovery can be had thereon.' Citing Caffrey v. Dudgeon, 38 Ind. 512 (1872).

If a judgment is void on its face it may be attacked in a collateral proceeding as well as directly. Michigan Mutual Liability Co. v. Perez, 137 Ind.App. 247, 207 N.E.2d 368 (1965). The Appellants here must conclusively demonstrate that such judgment of March 15, 1963, is void on its face.

The Appellants rely on five Indiana cases to justify this as an attack on a judgment void on its face. They are Stone v. U.S.F. & G., supra, Caffrey v. Dudgeon, supra, Michigan Mutual Liability Co. v. Perez, supra, Aramovich v. Doles, 244 Ind. 658, 195 N.E.2d 481 (1964), and Furness v. Brummitt, 48 Ind.App. 442, 95 N.E. 1114 (1911).

Caffrey involved a judgment which exceeded the statutory monetary...