Matthew v. Gavit, No. 20404

Docket NºNo. 20404
Citation214 N.E.2d 404, 138 Ind.App. 425
Case DateMarch 02, 1966
CourtCourt of Appeals of Indiana

Page 404

214 N.E.2d 404
138 Ind.App. 425
William Ralph MATTHEW and Alverta White Matthew,
Appellants,
v.
Albert M. GAVIT, as Administrator de bonis non of the Estate
of Henri Louis Bourdin, Appelee.
No. 20404.
Appellate Court of Indiana, In Banc.
March 2, 1966.

[138 INDAPP 425] Thomas A. Hoadley, Frederick J. Graf, Bloomington, for appellants.

[138 INDAPP 426] Albert M. Gavit, pro se.

SMITH, Presiding Justice.

This case is pending before this Court at this time on 'Appellee's Motion to Dismiss or Affirm.' The following is the nature of this action.

More than seven years after a judgment foreclosing two real estate mortgages was entered by the Monroe Circuit Court, the appellant, one of the defendants in the foreclosure action, filed a motion with the Monroe Circuit Court requesting permission to file a 'Belated Motion for a New Trial.'

The question which the appellant seeks to have reviewed by this Court is whether the Monroe Circuit Court erred in striking the appellant's motion. A brief summary of the proceedings, including the proceedings in the action to foreclose, is set out below.

On November 17, 1954, the appellee filed an action in the Monroe Circuit Court to foreclose two mortgages on real estate located in Monroe County, Indiana. The appellant, one of the two owners of the real estate, was a defendant in the action. The case was tried before the Monroe Circuit Court, without intervention of a jury, on May 19, 1958. The appellant was present in person at the trial and was represented at the trial by her attorney. At the conclusion of the evidence, a judgment of foreclosure was entered in favor of the plaintiff (appellee herein). Thereafter on June 11, 1958, the defendant Alverta White Matthew, appellant herein, filed a timely motion for a new trial. Both the appellant and her counsel were present at the argument on that motion. The motion for a new trial was overruled on June 23, 1958. There was no appeal from this ruling.

On March 15, 1965, the appellant filed with the trial court an unverified motion for permission to file a 'Belated (and second) Motion For a New Trial.' On March 25,

Page 405

1965, a verified second paragraph of appellant's motion for permission[138 INDAPP 427] to file a 'Belated Motion For a New Trial' was filed by the appellant. The appellee, on April 1, 1965, filed a motion to strike the appellant's motion and this motion was sustained by the trial court on April 2, 1965.

The only errors assigned by the appellant on appeal are as follows:

'1. The court erred in sustaining appellee's motion to strike the first and second paragraphs of the appellant's motion for permission to file a belated motion for a new trial.

'2. The court erred in striking appellant's motion in two paragraphs for permission to file a belated motion for a new trial.'

The appellee questions the 'argument' section of appellant's brief contending that the same does not meet the requirements of Rule 2-17 of the Supreme Court of Indiana. The main contention being that the appellant in her brief does not concisely state the basis of her objections, exhibiting clearly the points of fact and law being presented.

Rule 2-17 of the Supreme Court of Indiana provides, in pertinent part, as follows:

'After each assignment of error relied upon * * * there shall be concisely stated the basis of the objection to the ruling complained of, exhibiting clearly the points of fact and of law being presented, and how they are applicable * * *.'

From an examination of the 'argument' portion of the brief it appears that the appellant has failed to comply with the above quoted rule. In the case of Justice v. Tripp (1959), 130 Ind.App. 187, 158 N.E.2d 809, interpreting Rule 2-17(e) our Court held that 'appellant failed completely to comply with the aforesaid Rule 2-17(e) in that he failed in 'exhibiting clearly the points of fact and of law being presented, and how they are applicable, citing authorities and statutes relied upon * * *.' Mere proposition [138 INDAPP 428] of law is quoted and citations given. The appellant has altogether failed to apply the cases cited to the facts of the instant case and the application thereof.'

However, because this Court is reluctant to decide cases on technicalities, this opinion will now deal with the errors assigned by...

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2 practice notes
  • White v. Livengood, No. 2-178A10
    • United States
    • Indiana Court of Appeals of Indiana
    • June 18, 1979
    ...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 that it did not raise any errors for our consideration. TR. 59(B......
  • Strate v. Strate, No. 670A98
    • United States
    • Indiana Court of Appeals of Indiana
    • May 26, 1971
    ...was not filed within the time allowed, no question concerning its overruling could be presented on appeal. Natthew v. Gavit (1966), 138 Ind.App. 425, 214 N.E.2d 404; Sutton v. State (1960), 240 Ind. 512, 166 N.E.2d Instead of filing a motion for new trial, plaintiff filed her [149 Ind.App. ......
2 cases
  • White v. Livengood, No. 2-178A10
    • United States
    • Indiana Court of Appeals of Indiana
    • June 18, 1979
    ...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 that it did not raise any errors for our consideration. TR. 59(B......
  • Strate v. Strate, No. 670A98
    • United States
    • Indiana Court of Appeals of Indiana
    • May 26, 1971
    ...was not filed within the time allowed, no question concerning its overruling could be presented on appeal. Natthew v. Gavit (1966), 138 Ind.App. 425, 214 N.E.2d 404; Sutton v. State (1960), 240 Ind. 512, 166 N.E.2d Instead of filing a motion for new trial, plaintiff filed her [149 Ind.App. ......

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