Garwood's Estate, Matter of

• Decision Date: 30 November 1978
• Docket Number: No. 2-1075A295,2-1075A295
• Citation: 382 N.E.2d 1020,178 Ind.App. 435
• Parties: In the Matter of the ESTATE of Martha Ellen GARWOOD, Deceased.
• Court: Indiana Appellate Court

Page 1020

382 N.E.2d 1020

178 Ind.App. 435

In the Matter of the ESTATE of Martha Ellen GARWOOD, Deceased.

No. 2-1075A295.

Court of Appeals of Indiana, Fourth District.

Nov. 30, 1978.

William S. Spangler, Jon F. Schmoll, Spangler, Jennings, Spangler & Dougherty, Gary, Charles S. Siferd, Siferd, Roth, Christopher & Guy, Monticello, for appellants.

Phillip J. Badell, Badell & Malson, Rushville, L. David Dellinger, Dellinger, Dellinger & McLaughlin, Monticello, George R. Wildman, Miller, Tolbert, Hirschauer & Wildman, Logansport, for appellees.

YOUNG, Judge.

This appeal challenges certain proceedings during the administration of the estate of Martha Ellen Garwood. The appellants have failed to comply with Appellate Rule 3 of the Indiana Rules of Procedure. We therefore dismiss the appeal, sua sponte.

The record discloses that Garwood died in 1970. Among the assets of her estate was a farm which is the subject of the present dispute. Pursuant to an informal understanding among the beneficiaries Paul J. Garwood, decedent's son and initially a co-executor, entered into a contract to purchase the farm. This agreement was vigorously attacked by other descendants and by the subsequently appointed special administrator.

The special administrator refused to carry out the sale. He petitioned the court to resolve the controversy and to determine the disposition of the down payment made by Paul J. Garwood.

In response to the petition of the special administrator the circuit court held a hearing on the dispute. Thereafter the court ordered the special administrator to carry out the transaction. This order was embodied in a "judgment" ¹ which read in pertinent part as follows:

"The Special Administrator with the Will annexed is, as a part of this judgment, instructed and ordered to execute, transfer and deliver to the purchaser an administrator's deed concurrently with the delivery of the balance of purchase price within a reasonable time, subject to title and loan requirements or within days, whichever occurs first."

This entry by the circuit court is an order directed to the special administrator instructing him to carry out the transaction. The record does not disclose that the actual sale has been consummated. There is no indication that the balance of the purchase price has been paid by Paul J. Garwood. No deed has been given to him by the special administrator. There is nothing in the record to show that the transaction has indeed been carried out. ²

We have recounted these circumstances to demonstrate that the appellants challenge the court's order to sell real estate. Orders for the sale of real property in the course of probate administration are clearly interlocutory. Ind. Rules of Procedure, Appellate Rule 4(B)(2); Kiradlo v. Pisula, (1953) 232 Ind. 659, 115 N.E.2d 744; Campbell v. Union Trust Co. of Indpls., (1949) 227 Ind. 692, 88 N.E.2d 560; see also Simpson v. Pearson, (1869) 31 Ind. 1; Lehr v. First Nat. Bank of Mishawaka, (1962) 243 Ind. 353, 185 N.E.2d 521. This rule has been amply discussed by various commentators. See 4 Bobbitt's Revision of Works' Indiana Practice 368 (1974); 1 Bobbitt, Indiana Appellate Practice & Procedure 382 (1972); 1 Henry's Probate Law & Practice 927 (1954); Flanagan, Wiltrout & Hamilton, Indiana Trial & Appellate Practice Sec. 2159, at 38 (1952). The substance of Appellate Rule 4(B)(2) was formerly found in Burns Ind.Stat.Ann. 2-3218 (1963 Repl.) (now repealed). We note that the passage of the Probate Code in 1953 did not alter this rule. "The Probate Code Commission has commented that the code left unchanged the method of appeals and that any decision of the court may be appealed if it is a final decision or one from which an appeal would lie before the code." 1 Henry's Probate Law & Practice 309 (Supp.1977) (emphasis added). We further note that the adoption of the present Indiana Rules of Procedure does not change the meaning of an appealable interlocutory order. "Consequently, the former judicial construction of what constitutes an appealable interlocutory order under Sec. 2-3218 will remain valid." Civil Code Study Comm'n, Indiana Rules of Civil Procedure, Proposed Final Draft 281 (1968). This comment was made with respect to proposed Rule 72(b)(2). The substance of Rule 72(b)(2) now appears as Appellate Rule 4(B)(2) which was added by amendment in 1971.

Appellate Rule 3(B) requires that the appellants file the record with the clerk of the Court of Appeals within thirty days of the ruling on the interlocutory order. This was not done. Instead, the appellants filed a motion to correct errors and eventually filed the record well beyond the thirty-day limit. The Supreme Court has squarely held that this omission is fatal. Kiradlo v. Pisula, supra; Campbell v. Union Trust Co. of Indpls., supra (appeals from orders to sell real property will be dismissed where record not timely filed).

We abide by this precedent and dismiss the appeal. ³

Appeal dismissed.

ROBERTSON, J. (sitting by designation), concurs.

LYBROOK, P. J. (sitting by designation), concurs in result with opinion.

LYBROOK, Presiding Judge, concurring in result.

Although I agree with the final disposition of this case pursuant to the majority opinion, I feel compelled to state my separate reasons for doing so.

The essence of the majority opinion is that the "judgment" of the trial court must be classified as an interlocutory order, and that the time for the appeal of this order has expired; hence, our court need not consider the merits of this appeal.

While I agree with the majority that this judgment of the trial court is not final, and that the time for its appeal as an interlocutory order has run, I disagree with the majority's apparent belief that our rules of civil procedure require the automatic and absolute classification of such an appeal as interlocutory. I believe an alternative, created by the drafters of our rules for similar situations, should have been explored before the dismissal of this appeal. Ind. Rules of Procedure, Trial Rule 54(B) states:

"(B) Judgment upon multiple claims or involving multiple parties. When more than one (1) claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. A judgment as to one or more but fewer than all of the claims or parties is final when the court in writing expressly determines that there is no just reason for delay, and in writing expressly directs entry of judgment, and an appeal may be taken upon this or other issues resolved by the judgment; but in other cases a judgment, decision or order as to less than all the claims and parties is not final."

Clearly the trial court has decided fewer than "all the claims or the rights and liabilities of fewer than all of the parties" in the present case. Obviously then under T.R. 54(B) the judgment could have been accompanied at the trial level by a written determination that there was no just reason for delay; such a determination, upon the express direction for entry of judgment by the trial court, would have made the order immediately appealable as a final judgment. I believe we then would have been required to proceed to the merits of the case.

However, the trial court did not make the determination of "no just reason for delay" pursuant to T.R. 54(B), and the issue then arises whether this court must dismiss the case because it does not fit into the categories of 1) a final judgment; 2) a judgment "finalized" sufficiently under T.R. 54(B); or 3) an interlocutory order. Although the case is clearly dismissible because it cannot be so classified, the more important issue is whether this court should remand the case to the trial court for a determination of the finality issue in accordance with T.R. 54(B), thereby perhaps allowing a determination on the merits.

It recently has been the practice...