Hudson v. Tyson

Citation178 Ind.App. 376,383 N.E.2d 66
Decision Date27 November 1978
Docket NumberNo. 2-377A88,2-377A88
PartiesH. Pete HUDSON, Insurance Commissioner of Indiana, Appellant, (Garnishee Defendant Below), v. Eric L. TYSON, Appellee, (Judgment Plaintiff Below).
CourtCourt of Appeals of Indiana

Theodore L. Sendak, Atty. Gen., Jane M. Gootee, Deputy Atty. Gen., Indianapolis, for appellant.

Miller & Miller, Indianapolis, for appellee.

SHIELDS, Judge.

This is an appeal from an order in proceedings supplemental pending before this Court on the Appellee's Motion to Dismiss or in the Alternative to Affirm Judgment, which alleges that the appeal was not timely brought. We deny the Appellee's Motion.

Plaintiff-appellee Tyson was shot by his bailbondsman in the bondsman's attempt to capture him and bring him into court on an outstanding bench warrant. Tyson brought a suit for damages against the bailbondsman, the bondsman's partner, and the insurance company which underwrote the bond. Tyson obtained a judgment against all three defendants in the amount of Ten Thousand Dollars which was not appealed.

Subsequently, in the same cause, Tyson filed a Petition for Proceedings Supplemental to Execution under Indiana Rules of Procedure, Trial Rule 69(E), 1 naming the Appellant Hudson, Insurance Commissioner of Indiana, as garnishee-defendant. The petition sought to apply money on deposit with the Insurance Commissioner belonging to the defendant insurance company in satisfaction of the judgment.

On September 9, 1976 the trial court entered its order of garnishment against the garnishee-defendant Hudson. However, the trial court stayed execution of its order pending appeal. Hudson filed a motion to correct errors on October 27, 1976, which was overruled on December 17, 1976. Hudson filed his praecipe on December 17, 1976. On December 20, 1976 the trial court vacated the stay and ordered payment of $6,200.00, the balance then due on the original garnishment judgment. On March 14, 1977 Hudson filed a petition for extension of time to file the record, which was granted. A second extension of time was thereafter granted upon Hudson's petition. The record of the proceedings was filed with this Court on July 18, 1977.

Tyson seeks to dismiss, or in the alternative to affirm judgment, for the reason that Hudson failed to perfect a timely appeal from the judgment entered September 9, 1976. Tyson's argument may be summarized as follows:

1. T.R. 59(G) specifically says that a motion to correct errors is not required in appeals from orders in proceedings supplemental to execution. Therefore, Hudson's filing of a motion to correct errors on October 27, 1976 had no effect on the appellate process.

2. Pursuant to Indiana Rules of Procedure, Appellate Rule 3(B), the time for appeal expired 90 days from the September 9, 1976 judgment. Since neither the record of proceedings nor a motion for extension of time to file the record was filed within 90 days from the September 9, 1976 judgment, this appeal was not timely brought.

In response, Hudson argues that the trial court's order of December 20, 1976, which vacated the stay of execution issued on September 9, 1976 and ordered payment of the balance then owing on the original garnishment judgment, constitutes a new judgment from which the appeal was properly taken. Hudson also urges, as an alternative, that the appeal is from the ruling on the motion to correct errors made by the trial court on December 17, 1976. 2

There is, however, one further alternative. If this appeal is from an interlocutory order, rather than a final judgment, we plainly are without jurisdiction. Appellate Rule 3(B) requires that in an appeal from an interlocutory order the record must be filed within 30 days of the ruling on the order. Neither the motion to correct errors nor appellant's petition for extension of time was filed within 30 days of either the September 9, 1976 entry or the December 20, 1976 entry.

For reasons which follow, we conclude the appeal was timely.

I

Our first question is whether the entry of September 9, 1976 is interlocutory in nature or a final appealable judgment.

Cirtin v. Cirtin, (1928) 199 Ind. 737, 164 N.E. 493, 494, defines an Interlocutory order as:

(a judgment, order or decree) made before the final hearing on the merits. 2 Watson's Rev. of Works' Practice § 2244; 1 Hogate, Pleading and Practice § 739; 1 Freeman on Judgments (5th Ed.) § 38. An order of the court, made in the progress of the cause, requiring something to be done or observed, but not determining the controversy, is an interlocutory order, and is sometimes called an interlocutory judgment. Pfeiffer v. Crane, (1882) 89 Ind. 485, 487; Western Union Telegraph Co. v. Locke, (1886) 107 Ind. 9, 11, 7 N.E. 579.

A final judgment differs from an interlocutory order in that it represents the ultimate determination of the court upon the matter. A final judgment "disposes of all issues as to all parties, to the full extent of the court to dispose of the same, and puts an end to the particular case as to all of such parties and all of such issues." State ex rel. Neal v. Hamilton Circuit Court, (1967) 248 Ind. 130, 134, 224 N.E.2d 55, 57. 3

Indiana case law indicates that an order, such as the entry in question here, is a final appealable judgment.

In Mitchell v. Godsey, (1944) 222 Ind. 527, 53 N.E.2d 150, the judgment debtor appealed an order which directed him to pay over to the judgment creditor a percentage of the salary received from his employer. The order did not, as here, involve a third-party garnishee defendant. Our Supreme Court, nevertheless, treated the order as final and appealable even though the petition had been filed in the same cause and even though there existed at the time, as now, a limited 30-day period for filing of an interlocutory appeal. 4

Although Mitchell was concerned with the statutory proceedings supplemental process, since it pre-dates T.R. 69(E), we find nothing in the present Rule to suggest that a different result should obtain. Trial Rule 69 was merely intended to simplify the pleading procedure. "Its basic tenet is that proceedings supplemental to execution is a continuation of the original cause, is not a new action, and should be allowed to proceed without the technical showing that execution has been commenced or would be unavailing." Harvey and Townsend, Indiana Practice, Vol. 4, pp. 469-70 (1971). The Rule otherwise directs that "the case shall be heard and determined and property ordered applied towards the judgment in accordance with statutes allowing proceedings supplementary to execution." See, Protective Insurance Co. v. Steuber, (1977) Ind.App., 370 N.E.2d 406, 410-412.

To the extent that Bell v. Wabash Valley Trust Co., (1973) 156 Ind.App. 476, 297 N.E.2d 924, is relied upon to support the proposition that an order in a proceedings supplemental is necessarily interlocutory, such reliance is ill-founded. In Bell we did cite Pounds v. Chatham, (1884) 96 Ind. 342, for the proposition that an order in a proceedings supplemental requiring a third-party garnishee to pay a judgment creditor money was such "payment of money" as contemplated under Appellate Rule 4(B)(1), which sets forth those interlocutory orders which are appealable.

The order in the Pounds decision, however, was held to be a final appealable judgment. The Court in Pounds merely proceeded to speculate that, even assuming such order to be interlocutory, the appeal would nonetheless be proper since the order directed the payment of money as was required under a statute identical in language to Appellate Rule 4(B)(1). 5

As other Indiana cases indicate, an order in a proceedings supplemental can be interlocutory in nature. The proper analysis for determining whether the order is final or interlocutory is set forth in McKnight v. Knisely, (1865) 25 Ind. 336, also cited in Bell. There garnishee-defendants in a proceedings supplemental were ordered to make payment To the court pending outcome of the case. The court on appeal held the order to be interlocutory and, in so doing, distinguished it from a final order directing the defendant-garnishee to pay plaintiff:

An order to compel a defendant to pay a plaintiff money can rarely be said to be interlocutory. In the very nature of things, an interlocutory order for the payment of money, in most cases, is such an order as will place the money in a condition to abide the final judgment of the court.

Where, as here, the order directs the garnishee-defendants to make payment To the judgment-plaintiff, it is a final judgment. As stated in Pisarski v. Glowrszyn, (1942) 220 Ind. 128, 133, 41 N.E.2d 358:

(Not) all orders for the payment of money are interlocutory. They may be interlocutory or they may be final.

McKnight v. Knisely, (1865) 25 Ind. 336, strongly relied upon by appellee, was clearly an appeal from an interlocutory order which required the payment into court there to abide final judgment. But in the case at bar the money was ordered to be applied to the satisfaction of appellee's prior judgment. When so paid it would pass beyond the control of the court. This indicates finality. 6

The garnishment order entered against Hudson comports with the notion of finality in every respect. The September 9, 1976 entry resolved all the issues essential to the proceedings supplemental process: (1) that Tyson had a judgment against the bailbondsman, the bondsman's partner, and the insurance company which underwrote the bond; (2) which judgment was unpaid in full; (3) that Hudson had monies in his possession belonging to the insurance company; and (4) that said monies were available for payment of the unpaid balance of the judgment.

Nor does the language of Trial Rule 59(G) alter our determination that the order in question was a final appealable judgment. Trial Rule 59(G) states that a "Motion to Correct Errors shall not be required in the case of appeals from interlocutory orders, orders...

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