Hepp v. Hammer, 4-582A111
| Citation | 439 N.E.2d 735 |
| Decision Date | 21 September 1982 |
| Docket Number | No. 4-582A111,4-582A111 |
| Parties | Wayne HEPP, Carolyn Hepp, and Wade Dale Hepp, an infant, by Wayne and Carolyn Hepp, his parents and guardians, Appellants-Plaintiffs, v. Michael HAMMER, Physician, Appellee-Defendant. |
| Court | Court of Appeals of Indiana |
Zarko Sekerez, Merrillville, for appellants-plaintiffs.
Lester F. Murphy, Murphy, MacAtee, Murphy & Costanza, East Chicago, for appellee-defendant.
This is an attempted appeal from the dismissal of a medical malpractice complaint by the Lake Circuit Court.
Appeal dismissed.
Plaintiff-appellant Wayne Hepp, his wife, Carolyn, and son, Wade, an infant, by his parents as guardians, filed their complaint in 1979, charging defendant-appellee Michael Hammer, a physician, with negligently failing to advise Carolyn, Wade's natural mother, of the danger of future pregnancies due to the RH factor in her blood, during consultations in 1975. Hammer filed a motion to dismiss alleging:
(a) failure to promptly prepare and deliver to the trial court clerk copies of a summons reasonably calculated to effectuate service upon Hammer, a resident of Austria, a fact of which Hepps' counsel, Zarko Sekerez, had actual knowledge,
(b) the Hepps' claim was barred because it was filed more than two years after Hammer's alleged negligent acts, and
(c) the Hepps failed to allege, and in fact did not file a complaint with the Indiana Commissioner of Insurance against Hammer, a registered Health Care Provider, prior to filing the current action in the Lake Circuit Court.
The trial court granted Hammer's motion to dismiss on October 21, 1981, and twenty-two days later on November 12, 1981, entered judgment against the Hepps. The trial court had notified the parties of its order of dismissal on the day of its entry, pursuant to Ind. Rules of Procedure, Trial Rule 72(D), but the Hepps failed to amend their complaint within ten days, as provided by Trial Rules 12(B)(8) and 15(A). The Hepps then filed a motion to correct errors in the trial court on January 12, 1982, which was overruled February 8, 1982. The record on appeal was filed with the Clerk of this court on May 10, 1982.
We have no jurisdiction to entertain this appeal. In the first instance, the motion to correct errors was filed one day too late. 1
A trial court is without jurisdiction to entertain a motion to correct errors after the time provided for filing it has expired. The action of the trial court in overruling a motion to correct errors which was not timely filed is a nullity. Since the trial court had no jurisdiction, we have none. Indiana Parole Board v. Gaidi (1979) Ind.App., 395 N.E.2d 829; Gilliam v. Brozovic (1975) 166 Ind.App. 682, 337 N.E.2d 152; subines v. Browning (1973) 156 Ind.App. 185, 295 N.E.2d 853.
sub
Also, even if the Hepps' motion to correct errors had been timely filed, their "amended praecipe" for record was filed forty-three days too late. 2 It is incumbent upon appellant to present a record to this Court in which the fact of appellate jurisdiction affirmatively appears. Absent such showing the appeal will be dismissed. Louisville, etc. R.R. Co. v. Jackson, (1878) 64 Ind. 398; Peoples State Bank of Crown Point v. Bankers Trust Co. of Gary, (1936) 102 Ind.App. 647, 4 N.E.2d 674.
We note the Hepps' amended praecipe did not call for the entire record, only portions thereof. The original praecipe for record was not requested nor was it included. However, the amended praecipe for record reads in part:
"COME NOW Plaintiffs, by counsel, and amend their Praecipe, filed ...
To continue reading
Request your trial
-
Campbell v. Criterion Group, 29S02-9212-CV-1034
...86. Failure to provide this record is fatal to an appeal, depriving the reviewing court of jurisdiction. See, e.g. Hepp v. Hammer (1982), Ind.App., 439 N.E.2d 735. Generally, a transcript of the evidence and proceedings at trial must be included in the record for it to be deemed sufficient.......
-
Harts v. State
...of the trial court and in dicta, decide the issues submitted. This Court has no choice but to dismiss this appeal. 1 Also see Hepp v. Hammer (1982), Ind.App., 439 N.E.2d 735. 1 IC 9-4-4.5-4(a)(1):"(1) Did the law enforcement officer have probable cause to believe that the accused had commit......
-
Swain v. Swain, 18A02-9005-CV-00278
...permitted to be filed late) would be a nullity. Kratkoczki v. Regan (1978), 178 Ind.App. 184, 381 N.E.2d 1077, 1079; Hepp v. Hammer (1982), Ind.App., 439 N.E.2d 735, 736 Reh. granted, 445 N.E.2d 579 (1983). Where the record reasonably permits, we prefer to dispose of appeals on their Sekere......
-
Hepp v. Hammer
...CONOVER, Judge. The Hepps filed a petition for rehearing after our original opinion in this case was filed, cf. Hepp v. Hammer, (1982) Ind.App., 439 N.E.2d 735. There we dismissed the appeal due to lack of jurisdiction. It appeared the Hepps had filed both their motion to correct errors and......