Cohen v. Indianapolis Machinery Co., Inc., 1--575A84

• Decision Date: 12 January 1976
• Docket Number: No. 1--575A84,1--575A84
• Citation: 339 N.E.2d 612,167 Ind.App. 596
• Court: Indiana Appellate Court
• Parties: INDIANAPOLIS MACHINERY CO., INC., and Alvin J. Cohen, as Administrator of the Estate of Louis J. Borinstein, Deceased, Defendants-Appellants, v. Lawrence E. BOLLMAN et al., Plaintiffs-Appellees, and Peoples Bank & Trust Company, as Successor Trustee and Administrator of the Indianapolis Machinery Co., Inc., Profit Sharing Plan and Trust, et al., Defendants-Appellees. Alvin L. COHEN, as Administrator of the Estate of Louis J. Borinstein, Deceased, and Edwin E. Letzter, Cross Claimants-Appellants, v. INDIANAPOLIS MACHINERY CO., INC., Cross Defendant-Appellee.

Page 612

339 N.E.2d 612

167 Ind.App. 596

INDIANAPOLIS MACHINERY CO., INC., and Alvin J. Cohen, as

Administrator of the Estate of Louis J.

Borinstein, Deceased, Defendants-Appellants, v. Lawrence E. BOLLMAN et al., Plaintiffs-Appellees, and Peoples Bank & Trust Company, as Successor Trustee and Administrator of the Indianapolis Machinery Co.,

Inc., Profit Sharing Plan and Trust, et

al., Defendants-Appellees.

Alvin L. COHEN, as Administrator of the Estate of Louis J.

Borinstein, Deceased, and Edwin E. Letzter, Cross Claimants-Appellants, v. INDIANAPOLIS MACHINERY CO., INC., Cross Defendant-Appellee.

No. 1--575A84.

Court of Appeals of Indiana, First District.

Jan. 12, 1976.

Donald A. Schabel and John R. Carr, Jr., Indianapolis, Stephen A. Free, Greenfield, Sidney Mishkin and John Wood, Indianapolis, C. Thomas Cone, Greenfield, for appellants.

William H. Krieg, Richard D. Wagner and Anthony W. Mommer, Indianapolis, Melville E. Watson, Greenfield, Alan H. Lobley, Stephen M. Coons, Indianapolis, for appelles.

PER CURIAM.

The plaintiff-appellees and the defendant-appellee Peoples Bank & Trust Company have filed their Motion to Dismiss or Affirm as against cross-claimant-appellant Edwin E. Letzter, alleging that his motion to correct errors was not filed within 60 days after the entry of the judgment he seeks to appeal.

The record reveals that the judgment which Letzter seeks to appeal was entered on February 25, 1975. The sixtieth day thereafter fell on Saturday, April 26, 1975. By operation of Rule TR. 6(A) the time for filing the motion to correct errors ran to the end of Monday, April 28, 1975. The record shows Letzter's motion to correct errors was filed on May 7, 1975.

The record further shows that on June 4, 1975, Letzter filed a motion for entry nunc pro tunc, in which he alleged the motion to correct errors was mailed on April 28, 1975, but that through inadvertence of the secretary of the attorney for Letzter, the envelope transmitting the motion to correct errors was not sent by certified mail but it was intended that it be so sent. The trial court granted Letzter's motion and corrected its previous entry to show Letzter's motion to correct errors was filed on April 28, 1975, the date it was mailed, rather than May 7, the date it was originally shown to have been filed.

Appellant Letzter has filed his Motion to Strike the Motion to Dismiss or Affirm alleging that the moving parties are not parties to the Judgment he seeks to appeal and therefore have no standing to more to dismiss his appeal or affirm the judgment against him. This Court has the duty to determine its jurisdiction over matters presented to it. Whether a jurisdictional defect is raised by a party or discovered by the Court and acted upon sua sponte, is of no consequence. ¹

Rule TR. 59(C) provides:

'(C) When motion to correct errors must be filed. A motion to correct errors shall be filed not later than sixty (60) days after the entry of judgment.'

Rule TR. 5(E) sets out how filing is to be accomplished:

'(E) Filing with the court defined. The filing of pleadings and papers with the court as required by these rules shall be made by one of the following methods:

(1) (D)elivering the pleadings or papers to the clerk of the court;

(2) (M)ailing the papers to the clerk by registered or certified mail return receipt requested; or

(3) (I)f the court so permits, filing the papers with the judge, in which event he shall note thereon the filing date and forthwith transmit them to the office of the clerk.

Filing by registered or certified mail shall be complete upon mailing.' (Our emphasis)

If the Supreme Court had intended that filing could be accomplished by mailing the papers to the clerk by ordinary mail, it would not have adopted the rule it did which requires mailing by registered or certified mail return receipt requested. (Compare Rule AP. 12(C)).

By counsel's own admission in his Motion for Entry Nunc Pro Tunc, the motion to correct errors was not sent by certified...