Lows v. Warfield

Decision Date15 June 1970
Docket NumberNo. 370A37,370A37
Citation259 N.E.2d 107,149 Ind.App. 569
PartiesDerward LOWS, Appellant, v. Thomas W. WARFIELD, Appellee.
CourtIndiana Appellate Court

Douglas R. Denmure, Denmure & Denmure, Aurora, Cooper, Cooper, Cooper & Cox, Madison, for appellant.

Wycoff & Greeman, Batesville, Chester R. Callis, Vevay, for appellee.

ON APPELLEE'S MOTION TO DISMISS APPEAL

PER CURIAM.

The plaintiff-appellant instituted this cause of action in the Switzerland Circuit Court by filing therein a complaint for damages for personal injuries allegedly sustained by him as a result of the defendant-appellee's negligence. On December 22, 1969, pursuant to the appellee's motion therefor, the trial court entered a final summary judgment against the appellant. Thereafter on March 18, 1970, the appellant submitted his appeal by filing with the Clerk of this Court the transcript of the proceedings in the trial court and an Assignment of Errors. Said Assignment of Errors is as follows:

'The appellant avers that there is manifest error in the judgment and proceedings in this cause, which is prejudicial to the appellant, in this:

'1. The Trial Court erred in sustaining the appellee's motion for summary judgment.

'2. The Trial Court erred in granting the appellee's motion for a summary judgment.'

This cause is now before us on the Appellee's Motion to Dismiss Appeal, which alleges as cause therefor that no Motion to Correct Errors was filed in the trial court and no Motion to Correct Errors is contained in the transcript. In the Memorandum attached to his Motion to Dismiss Appeal, the appellee directs our attention to Trial Rule 59(G) and Appellate Rule 7.2(A)(1), which rules read as follows:

Trial Rule 59(G).

'(G) Motion to correct error a condition to appeal. In all cases in which a motion to correct errors is the appropriate procedure preliminary to an appeal, such motion shall separately specify as grounds therefor each error relied upon however and whenever arising up to the time of filing such motion. Issues which could be raised upon a motion to correct errors may be considered upon appeal only when included in the motion to correct errors filed with the trial court. A motion to correct errors shall not be required in the case of appeals from interlocutory orders, orders appointing or refusing to appoint a receiver, and from orders in proceedings supplemental to execution.'

Appellate Rule 7.2(A)

'(A) Definition. The record of the proceedings shall consist of the following documents:

'(1) A certified copy of the motion to correct errors or an assignment of errors.

'(a) In all appeals from a final judgment, a certified copy of the motion to correct errors filed with the trial court shall constitute for all purposes the assignment of errors. No assignment of error other than the motion to correct errors shall be included in the record.

'(b) In all appeals from interlocutory orders, there shall be included instead of the certified copy of the motion to correct errors a specific assignment of the errors alleged.'

The appellee contends that the summary judgment entered by the trial court was a final judgment because it completely disposed of the appellant's claim. With this contention we agree. Jose v. Indiana National Bank, etc., et al. (1966), 139 Ind.App. 272, 276, 218 N.E.2d 165. Appellee further contends that Trial Rule 59(G) and Appellate Rule 7.2(A)(1), when read in conjunction, require the filing of a Motion to Correct Errors as a condition precedent to an appeal from the entry of a final summary judgment.

The problem presented by the appellee's Motion to Dismiss is not novel, as it previously plagued the bench and bar after the enactment of the summary judgment statute. (Burns' Indiana Statutes, Sec. 2--2524) (1968 Repl.). The exact question which arose after the enactment of this statute and before the adoption of the Indiana Rules of Procedure on January 1, 1970, was, whether a party should appeal directly from an adverse entry of summary judgment by assigning as error in this Court the entry of summary judgment, or whether the appealing party was required to file a motion for new trial in the trial court as a preliminary step to appeal.

This Court, in the case of Kapusta v. DePuy Mfg. Co., Inc. (1968), 141 Ind.App. 479, 229 N.E.2d 828, in considering a motion to dismiss based on the appellant's having filed a motion for new trial after the entry of summary judgment against him, held that a motion for new trial was properly taken and denied the motion to dismiss.

Thereafter, in the case of Aldridge v. Aldridge (1968), Ind.App., 233 N.E.2d 781, this Court reversed the position it had previously taken in Kapusta, supra, and held that a motion for new trial was improper, as the summary judgment proceeding is not a trial. The appellant in Aldridge sought transfer to the Supreme Court, which was denied. Subsequently, on April 22, 1968, the Supreme Court amended its prior Rule 2--6 as follows:

'Provided, however, a motion for a new trial shall not be appropriate for raising error claimed by reason of the entering of a summary judgment. The sustaining of a motion for a summary judgment and the granting of same may be assigned and specified separately in the assignment of errors for consideration on appeal.

'Provided further, however, that in all cases prior to the effective date of this amendment, where a motion for a new trial has been filed following a summary judgment, the parties to said action shall have the same time within which to file a transcript and assignment of errors for appeal as in those cases where a motion for a new trial is proper, and the alleged error if set forth and specified in the motion for a new trial will be considered on appeal. (Adopted April 17, 1940, effective Sept. 2, 1970; amended June 17, 1943, effective Sept. 6, 1943 amended and effective Nov. 30, 1949; amended June 28, 1960, effective in cases filed on or after Sept. 1, 1960; amended and effective April 22, 1968.)'

Therefore, between April 22, 1968, and January 1, 1970 (the effective date of...

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10 cases
  • City of Mishawaka v. Stewart
    • United States
    • Indiana Appellate Court
    • January 31, 1973
    ...of a motion to correct errors with trial court is a condition precedent to perfecting an appeal from a final judgment. Lows v. Warfield, Ind.App., 259 N.E.2d 107 (1970); Bradburn v. County Department of Public Welfare of St. Joseph County, Ind.App., 266 N.E.2d 805 (1971). Therefore, the Boa......
  • Yerkes v. Washington Mfg. Co., Inc.
    • United States
    • Indiana Appellate Court
    • April 28, 1975
    ...among the categories of final judgment which require the filing of a motion to correct errors under T.R. 59(A). See Lows v. Warfield, Ind.App., 259 N.E.2d 107 (1970), and Bradburn v. County Department of Public Welfare of St. Joseph County, 148 Ind.App. 387, 266 N.E.2d 805 Since plaintiff f......
  • City of Mishawaka v. Stewart
    • United States
    • Indiana Supreme Court
    • April 30, 1974
    ... ... 'The filing of a motion to correct errors with trial court is a condition precedent to perfecting an appeal from a final judgment. Lows v. Warfield, Ind.App., ... 259 N.E.2d 107 (1970); Bradburn v. County Department of Public Welfare of St. Joseph County, 148 Ind.App. 387, 266 N.E.2d ... ...
  • Lows v. Warfield
    • United States
    • Indiana Appellate Court
    • October 26, 1971
  • Request a trial to view additional results

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