John Dehner, Inc. v. Northern Indiana Public Service Co.

• Decision Date: 21 June 1973
• Docket Number: No. 3--273A19,3--273A19
• Citation: 297 N.E.2d 481,156 Ind.App. 467
• Parties: JOHN DEHNER, INC., Appellant, v. NORTHERN INDIANA PUBLIC SERVICE CO., Appellee.
• Court: Indiana Appellate Court

Page 481

297 N.E.2d 481

156 Ind.App. 467

JOHN DEHNER, INC., Appellant, v. NORTHERN INDIANA PUBLIC SERVICE CO., Appellee.

No. 3--273A19.

Court of Appeals of Indiana, Third District.

June 21, 1973.

John H. Krueckeberg of Parry, Krueckeberg & Lee, P.C., Ft. Wayne, for appellant.

J. A. Bruggeman of Barrett, Barrett & McNagny, Ft. Wayne, for appellee.

ON THE APPELLEE'S MOTION TO DISMISS

PER CURIAM.

This cause is pending before the Court on the appellee's Motion to Dismiss, which alleges the failure of the appellant to file a motion to correct errors in the trial court, and the appellant's response thereto.

This was an action for contribution between joint tort feasors. The defendant filed a motion to dismiss which the trial court subsequently granted. The plaintiff-appellant did not file a motion to correct errors in the trial court. Instead, it assigned as error in this Court that the trial court erred in dismissing the plaintiff's complaint and in sustaining the defendant's motion to dismiss.

The appellant argues in opposition to appellee's motion to dismiss that the motion to correct errors in an approximate equivalent of the former motion for new trial, that under our former procedure a motion for new trial was not appropriate after a judgment of dismissal, and therefore under our present practice, a motion to correct errors is not appropriate after a judgment of dismissal.

Both the Supreme Court and this Court have held that in all cases where a final judgment is being appealed, the timely filing of a motion to correct errors in the trial court is a condition precedent to appeal.

The case of Bradburn v. County Department of Public Welfare (1971), Ind.App., 266 N.E.2d 805, was an appeal from a judgment in an agreed case. In the Bradburn case, the appellant argued that a motion to correct errors was not appropriate because there had not been a trial. This Court discussed at length Rules TR 59(G) and AP 7.2(A), and then stated:

'. . . In reading the above two rules in conjunction, we conclude that in an appeal from any final judgment entered after January 1, 1970, even a final judgment on an agreed case, the appealing party must file in the trial court a motion to correct errors as a condition precedent to an appeal. Under our former procedure, the relief prayed for in a motion for new trial, and, if granted, was just what the name states--a new trial. Thus, where there had been no trial in the first instance, a new trial was not contemplated.

'The motion to correct errors, however, is not limited to those instances where there has been a trial, as was the old motion for new trial. Under TR. 59(A) the motion to correct errors can present to the trial court almost any conceivable error and can pray for relief suitable to the alleged error. Under the provisions of TR. 59(E) the trial court is empowered to grant any appropriate relief and is not limited to granting a new trial. We must hold in this case, therefore, that the appellant, in failing to file his motion to correct errors in the trial court and in failing to include a certified copy of that motion in the record of the proceedings as his assignment of errors in this Court, has presented nothing for review.

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