Davis v. Davis, 2--1172A115
| Decision Date | 10 May 1973 |
| Docket Number | No. 2--1172A115,2--1172A115 |
| Citation | 295 N.E.2d 837,156 Ind.App. 176 |
| Parties | James H. DAVIS, Appellant, v. Gladys M. DAVIS, Appellee. |
| Court | Indiana Appellate Court |
George A. Cottrell, Carroll & Cottrell, John P. Price, Bingham, Summers, Welsh & Spilman, Indianapolis, for appellant.
Robert A. Claycombe, Kothe, Shotwell, Claycombe, Hendrickson & Kortepeter, Indianapolis, for appellee.
ON APPELLEE'S MOTION TO DISMISS OR AFFIRM
This cause is pending before the Court on the Appellee's Motion to Dismiss or Affirm, Brief in Support thereof, and Appellant's Memorandum in Opposition to appellee's said Motion.
It appears from the record herein that after the trial court entered its judgment granting the defendant-appellee-wife a divorce on her amended counter claim for divorce, the appellee-wife filed a motion to correct errors. The trial court subsequently granted appellee's motion to correct errors and entered its second amended judgment which further adjusted the division of property previously ordered by the court. The appellant-plaintiff-husband timely filed his praecipe and is appealing the trial court's granting of defendant-wife's motion to correct errors.
The appellee's Motion to Dismiss or Affirm and Brief in Support thereof allege that this Court has no jurisdiction because appellant-husband did not file a second motion to correct errors after the trial court granted the defendant-wife's motion.
Thus, the problem presented is whether the party adversely affected by the trial court's granting of a motion to correct errors must, as a condition precedent to appealing that ruling, file another motion to correct errors, alleging as error the trial court's sustaining of the prior motion to correct errors. We think not, and so hold.
Appellee argues that the first amendment of judgment was a final judgment to which appellee filed her motion to correct errors. In response to appellee's motion, the trial court entered a second amendment of judgment, and to perfect an appeal from the second judgment, a second motion to correct errors should have been filed directed to the second judgment.
Appellant argues that he may appeal from the granting of the wife's motion without filing a second motion and he directs our attention to Rule AP. 4(A), which reads in part as follows:
'A ruling or order by the trial court granting or denying a motion to correct errors shall be deemed a final judgment, and an appeal may be taken therefrom.'
In seeking to understand the intent of the rules, we will follow the same process as in construing statutes, that is, we will ascribe to the words used, their plain and ordinary meaning. In our opinion, the rule clearly authorizes an appeal to be taken from either the granting or denying of the motion to correct errors.
If the Supreme Court had intended a different procedure, it could have provided that an appeal could be taken only from the denial of the motion to correct errors. If such a rule had been adopted, then the argument that appellee presents herein would be valid. Assuming, arguendo, the Supreme Court had adopted a rule permitting appeals only from the denial of a motion to correct errors, then in this case, after the court granted the appellee's motion to correct errors, the appellant would have been required to have filed a second motion to correct errors, alleging as error the trial court's granting of the appellee's prior motion, and he would not be permitted to appeal unless and until the trial court denied his...
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Wireman v. Wireman
...because of confusion regarding the necessity of a second Motion to Correct Errors when a new judgment is made. See Davis v. Davis (2d Dist.1973), Ind.App., 295 N.E.2d 837, holding that a second motion was not required. That holding was vacated on rehearing to conform with the Supreme Court'......
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Davis v. Davis
...court's Second Amended Judgment). By a Per Curiam opinion handed down May 10, 1973, we improvidently overruled Gladys's Motion. Davis v. Davis, (1973) Ind.Ct.App., 295 N.E.2d 837. The facts and evidence most favorable to the judgment of the trial court are: On April 20, 1971, James filed a ......
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Weber v. Penn-Harris-Madison School Corp.
...to extricate themselves from their procedural dilemma by stating they placed their reliance upon the first Davis case. (Davis v. Davis (1973), Ind.App., 295 N.E.2d 837). However, our Supreme Court decided State v. Deprez (1973), Ind., 296 N.E.2d 120, on May 21, 1973, which was published in ......