Lines v. Browning
| Decision Date | 14 May 1973 |
| Docket Number | No. 1--273A40,1--273A40 |
| Citation | 295 N.E.2d 853,156 Ind.App. 185 |
| Parties | Larry J. LINES, Appellant, v. Carole Joan BROWNING, Appellee. |
| Court | Indiana Appellate Court |
James R. White and R. Clark Allen, New Castle, for appellant.
Lawrence D. Renfro, Renfro & Whitton, New Castle, for appellee.
This cause is pending before the Court on the Appellee's Motion to Dismiss Appeal or Affirm Judgment which alleges that the Motion to Correct Errors was not filed within 60 days after entry of judgment as required by rule TR. 59(C).
The record reveals that judgment was entered in this cause on August 21, 1972, adjudging that the defendant-appellant was the father of plaintiff's child and ordering support.
On November 15, 1972, more than 60 days after judgment, defendant filed his Petition Requesting Court Order for Permission to File Motion to Correct Errors After 60 Days from Date of Judgment. Thereafter on November 30, 1972, the Court granted defendant's said Petition, permitted the belated Motion to Correct Errors to be filed, and overruled the Motion to Correct Errors. This appeal followed.
Rule TR. 59(C), IC 1971, 34--5--1--1 reads as follows:
The language of the rule, employing the word 'shall' is mandatory. Therefore we must assume the Supreme Court intended that the Motion to Correct Errors could not be filed after the expiration of 60 days after the entry of judgment.
Under our former procedure, the time for filing the motion for new trial was governed by statute. There were numerous cases holding that the motion for new trial must be filed within the statutory period, a motion filed after the thirty day period is ineffective, cannot be considered, will be stricken or overruled, and the rights of the parties are the same as though the motion had never been filed. 22 I.L.E. New Trial, § 114, p. 86, and cases cited. Lloyd's Motor Sales etc. v. Ohning, etc. (1961) 133 Ind.App. 228, 177 N.E.2d 922.
We think the former cases are still applicable to the mandatory language of rule TR. 59(C) so that a Motion to Correct Errors filed more than 60 days after entry of judgment presents no question to the trial court and preserves no question for appeal.
In the case of Brunner v. Terman (1971) Ind.App., 275 N.E.2d 553, one of the parties filed his Motion to Correct Errors on the sixty-first day after...
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Skolnick v. State
...is jurisdictional and this court must dismiss any appeal in which a motion to correct errors was not timely filed. Lines v. Browning (1973), 156 Ind.App. 185, 295 N.E.2d 853; Bruner v. Terman (1971), 150 Ind.App. 139, 275 N.E.2d 553. An extension of time for a motion to correct errors canno......
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...See Beck v. State (1961), 241 Ind. 237, 170 N.E.2d 661; Sutton v. State (1960), 240 Ind. 512, 166 N.E.2d 651; Lines v. Browning (1973), 156 Ind.App. 185, 295 N.E.2d 853; Matthew v. Gavit (1966), 138 Ind.App. 425, 214 N.E.2d Examining the first Motion to Correct Errors we can only conclude t......
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...This rule has been held to be mandatory and jurisdictional. See Brunner v. Terman (1971), Ind.App., 275 N.E.2d 553 and Lines v. Browning (1973), Ind.App., 295 N.E.2d 853. It is Ernest Barnett's contention that the December 4, 1970 order of partition was the 'entry of judgment' from which th......
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Cohen v. Indianapolis Machinery Co., Inc., 1--575A84
...correct errors was not timely filed he has failed to preserve any issues for review and his appeal must be dismissed. Lines v. Browning (1973) Ind.App., 295 N.E.2d 853; Brunner v. Terman (1971) Ind.App., 275 N.E.2d 553. The Joint Motion of plaintiffs-appellees and defendant-appellee, People......