Kragulac v. Marich, 20503

• Decision Date: 26 April 1968
• Docket Number: No. 20503,20503
• Parties: Nicholas KRAGULAC et al., Appellants, v. Mirko MARICH et al., Appellees.
• Court: Indiana Appellate Court

Page 58

236 N.E.2d 58

142 Ind.App. 529

Nicholas KRAGULAC et al., Appellants, v. Mirko MARICH et al., Appellees.

No. 20503.

Appellate Court of Indiana, In Bank.

April 26, 1968.

John N. Stanton, Nick Stepanovich, David S. Stevens, Stepanovich & Stevens, East Chicago, for appellants.

Martin A. Karr, East Chicago, for appellees.

ON REHEARING

COOK, Presiding Justice.

A former opinion of this court affirmed a judgment for appellees and against appellants, Kragulac et al. v. Marich et al., Ind.App., 231 N.E.2d 842 (December 19, 1967).

Appellants have filed and presented a timely petition for rehearing. Judge Bierly has indicated that he will dissent to this opinion because he believes appellants' petition for rehearing does not comply with Supreme Court Rule 2--22. The errors of law in this proceeding are so patent I would grant a rehearing on this court's own motion.

However, I am not in the least misled by the form of the application for a rehearing. Nor do I believe that the petition, as prepared and presented, is violative of Supreme Court Rule 2--22. Appellants' petition states clearly and concisely eight separately numbered reasons why the decision of this court is believed to be erroneous. The petition is signed by appellants' counsel, as required. Following eight succinctly stated reasns for rehearing, eight succinctly stated reasons for rehearing, upon by references to the transcript of the record in relation to the former opinion and decision of this court, which was neither concise nor correct. Appellants filed a separate brief, as suggested by Rule 2--22.

I do not intend to close my eyes to matters which are evident and thus permit the errors in this proceeding to go unchallenged. It is only necessary to examine two of the reasons submitted in appellants' petition for rehearing, namely:

'5. The Court erred in failing to give a statement in writing and in failing to give a decision thereof of a substantial question arising on the record and presented by appellants' brief, towit: as to whether the trial court erred in entering judgment in a cause without submission, pleadings, trial or evidence.'

'8. The court erred in not holding that all of the proceedings in the trial court after December 26, 1965, the date of the filing of the transcript in this court, were illegal and void, as having been made without jurisdiction.'

It should be remembered that the cause of action in this court is an appeal from a final judgment of the Lake Superior Court, rendered on June 29, 1965. By timely steps, appellants filed a motion for new trial (containing statutory grounds) which was overruled; signed a praecipe for a transcript of the entire record for appeal to this court; submitted to the trial court an appeal bond, which the trial court approved on November 5, 1965; and filed their assignment of errors and transcript of the record with the Clerk of this court on December 24, 1965.

The judgment of the trial court which the former opinion and decision affirmed was rendered in this cause on September 27, 1966, which was approximately nine months after the transcript of the record and assignment of errors were filed in this court. The former opinion states: 'The trial court apparently considered the judgment under date of June 29, 1965, as in the nature of an interlocutory order.' If this court believed that the June 29, 1965, judgment was an interlocutory order, appellees' motion to dismiss this appeal filed in this court on June 16, 1966, and the entire cause on appeal, should have been transferred to the Supreme Court pursuant to Supreme Court Rule 2--41, because this court does not have jurisdiction of appeals from interlocutory orders. Burns' Ind.Stat.Anno. § 2--3218.

Instead, this court held appellees' motion to dismiss this appeal in abeyance by its order of August 22, 1966, and no ruling on this issue was ever made except by implication by the former opinion which affirmed the later invalid judgment in this cause.

The judgment of June 29, 1965, which is the judgment appealed from, is clearly a final judgment. Appellees' complaint alleged that a dispute existed between appellees' faction and appellants' faction as members of the Serbian Orthodox Church-School Congregation in East Chicago, Indiana, in respect of qualifications for voting at the election of members of the church board, the conduct of the election, and as to matters of church dogma and affiliation. The prayer of the complaint asked that appellants be restrained without notice, from voting on 'the controversy' on March 1, 1964. This relief was granted by the trial court. The prayer of appellees' complaint also asked that appellants be compelled to conduct voting on 'the controversy upon proper ballot'. That is to say, upon a ballot approved by appellees. By its judgment of June 29, 1965, the trial court granted all the relief prayed for in appellees' complaint, reserving no further matters for future determination. This was a final, appealable judgment.

The question then aries: How did the void judgment of September 26, 1966, which is set out verbatim in this court's former opinion, and which was affirmed, come before this court, and why was it given any consideration? The former opinion merely states, 'On November 2, 1966, appellees filed certifying procedures had after August 8, 1966, in the trial court.' This is not only incredible, but procedurally impossible. Any proper matter omitted from the transcript of the record prior to certification of the transcript on appeal could be brought to this court only by a verified application for certiorari, in accordance with Supreme Court Rule 2--28. This was not done, nor would such an application have been granted if a full disclosure had been made as required by Rule 2--28.

The so-called 'certifying procedures' filed by appellees on November 2, 1966, which included the trial court's purported judgment dated September 26, 1966, do not have any standing in this court. The state of the record cannot be improved, nor can such invalid judgment be validated, but it is noteworthy that appellees did not serve such 'certifying procedures' upon appellants prior to filing here or later, which violates Supreme Court Rules 2--13 and 2--15A, and constitutes a sort of appeal by ambush without cross errors. It shouldn't be necessary to discuss the principle at length, but doubtless it should be re-emphasized that an appeal does remove the entire cause to the Appellate Court and deprives the trial court of any further jurisdiction over the matter. This may occur in several ways, but it is conclusive that the trial court loses its jurisdiction after an appeal has been perfected by the filing of an assignment of errors and a transcript of the record in the reviewing court. Indianapolis Life Ins. Co. v. Lundquist (1944), 222 Ind. 359, 53 N.E.2d 338; Hill v. Lincoln National Bank and Trust Co. (1938), 214 Ind. 451, 15 N.E.2d 1019; Helms v. Cook (1915), 58 Ind.App. 259, 108 N.E. 147.

Recently, under circumstances identical to those presented in this appeal, Judge Jackson, in Lake County Dept. of Public Welfare v. Roth (1961), 241 Ind. 603, 605, 174 N.E.2d 335, 336, said:

'The situation presented by the present state of the record is unique to say the least. This court has previously held that the appeal removes the entire cause to the higher court and deprives the trial court of any further jurisdiction over the action. (citing cases) It therefore follows that the attempted action in the court below is wholly and utterly void.'

Appellants in their motion for a new trial, assignment of errors and briefs filed in this court, specify and argue that the trial court deprived them of a trial on the merits raised by appellees'-plaintiffs' complaint. Appellants assert the judgment of the trial court under date of June 29, 1965, was rendered without giving appellants an opportunity to file an answer to appellees' complaint and submit the issues to trial.

I believe appellants' contention of error is well taken. It is apparent that the former opinion did not give a decision on this issue. Instead, the former opinion states: 'The case at bar was submitted to the court by agreement of the parties upon the evidence contained in the depositions as to all issues presented by the pleadings.' The opinion, quoting from appellees' brief, also states: 'Appellants agreed to the judgment...