Middlekamp v. State Exchange Finance Co., No. 3--672A22

Docket NºNo. 3--672A22
Citation155 Ind.App. 45, 290 N.E.2d 780
Case DateDecember 29, 1972
CourtCourt of Appeals of Indiana

Page 780

290 N.E.2d 780
155 Ind.App. 45
John E. MIDDLEKAMP and Larain Middlekamp, Husband and Wife, Appellants,
v.
STATE EXCHANGE FINANCE COMPANY, an Indiana corporation, Alex
Hanewich and Ruth Hanewich, Husband and Wife, Appellees.
No. 3--672A22.
Court of Appeals of Indiana, Third District.
Dec. 29, 1972.

Paul B. Huebner, Hammond, Dale Schwanke, DeMotte, for appellants.

Thomas B. Dumas, Cope J. Hanley, Rensselaer, for appellees.

PER CURIAM.

This cause is before the Court on the Appellees' Motion to Dismiss Appeal or Affirm Judgment of the Court Below,

Page 781

Brief in Support thereof, Appellants' Objections to Appellees' Motion, Appellants' Motion for Certiorari, and Appellees' Response to Motion for Certiorari.

[155 Ind.App. 46] The Appellees' Motion to Dismiss or Affirm alleges as cause therefor that no motion to correct errors was ever filed in the trial court, and that the praecipe was filed seventy-four (74) days after judgment. Appellants assert in response to the Motion to Dismiss that 'the Appellees' Motion for Dismissal is estopped' by reason of certain agreements in the trial court between counsel and the Judge. Appellants do not further enlighten us, either as to the nature of the agreements, or as to how any such agreements could operate to circumvent rules TR. 59(G) IC 1971, 34--5--1--1, and AP. 7.2(A)(1)(a).

Appellees' response to Appellants' Motion for Certiorari contains the affidavit of the trial judge which states, inter alia, that there were no agreements between himself and trial counsel to waive the filing of a motion to correct errors, that no motion to correct errors was filed, and no motion to correct errors was actually considered by the trial court.

We have examined the record of the proceedings herein which reveals that this was a cause of action for possession of real estate. After trial, the Court entered judgment on March 24, 1972. The record does not contain a motion to correct errors. The record does contain an assignment of errors directed to this court. The record does not show that the assignment of errors was filed in the trial court.

In the case of Indiana State Personnel Board et al. v. Diggs (1971) Ind., 272 N.E.2d 868, our Supreme Court had before it a case in which a motion to dismiss was filed which alleged the appellants' failure to file a motion to correct errors. The Supreme Court, by Justice Prentice, held as follows:

'TR. 59(G) provides as follows:

'Motion to correct error a condition...

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4 practice notes
  • Middelkamp v. Hanewich, No. 3-474A54
    • United States
    • Indiana Court of Appeals of Indiana
    • July 20, 1977
    ...to file a motion to correct errors; their appeal from this judgment was dismissed. Middelkamp v. State Exchange Finance Co. (1972), 155 Ind.App. 45, 290 N.E.2d Page 1033 C. The Present Complaint On May 17, 1973, Middelkamps filed the present action against Hanewiches in four paragraphs. Par......
  • Daben Realty Co., Inc. v. Stewart, No. 1171A230
    • United States
    • Indiana Court of Appeals of Indiana
    • December 29, 1972
    ...failed to convince the trial judge, that the condition of the floor at the time the tests were made was substantially similar to its [155 Ind.App. 45] condition at the time of the fall, some five and one-half years earlier. Whatever may have been the form of the question, we are satisfied t......
  • Weber v. Penn-Harris-Madison School Corp., PENN-HARRIS-MADISON
    • United States
    • Indiana Court of Appeals of Indiana
    • October 24, 1974
    ...448; Bradburn v. Co. Dept. Public Welfare (1971), Ind.App., 266 N.E.2d 805; Middlekamp v. State Exchange Finance Co. (1973), Ind.App., 290 N.E.2d 780. The Appellants attempt to extricate themselves from their procedural dilemma by stating they placed their reliance upon the first Davis case......
  • Murray v. Murray, No. 2--1273A276
    • United States
    • Indiana Court of Appeals of Indiana
    • April 25, 1974
    ...448; Bradburn v. Co. Dept. Public Welfare (1971), Ind.App., 266 N.E.2d 805; Middlekamp v. State Exchange Finance Co. (1973), Ind.App., 290 N.E.2d 780. The appellee's Motion to Dismiss is sustained and this cause is...
4 cases
  • Middelkamp v. Hanewich, No. 3-474A54
    • United States
    • Indiana Court of Appeals of Indiana
    • July 20, 1977
    ...to file a motion to correct errors; their appeal from this judgment was dismissed. Middelkamp v. State Exchange Finance Co. (1972), 155 Ind.App. 45, 290 N.E.2d Page 1033 C. The Present Complaint On May 17, 1973, Middelkamps filed the present action against Hanewiches in four paragraphs. Par......
  • Daben Realty Co., Inc. v. Stewart, No. 1171A230
    • United States
    • Indiana Court of Appeals of Indiana
    • December 29, 1972
    ...failed to convince the trial judge, that the condition of the floor at the time the tests were made was substantially similar to its [155 Ind.App. 45] condition at the time of the fall, some five and one-half years earlier. Whatever may have been the form of the question, we are satisfied t......
  • Weber v. Penn-Harris-Madison School Corp., PENN-HARRIS-MADISON
    • United States
    • Indiana Court of Appeals of Indiana
    • October 24, 1974
    ...448; Bradburn v. Co. Dept. Public Welfare (1971), Ind.App., 266 N.E.2d 805; Middlekamp v. State Exchange Finance Co. (1973), Ind.App., 290 N.E.2d 780. The Appellants attempt to extricate themselves from their procedural dilemma by stating they placed their reliance upon the first Davis case......
  • Murray v. Murray, No. 2--1273A276
    • United States
    • Indiana Court of Appeals of Indiana
    • April 25, 1974
    ...448; Bradburn v. Co. Dept. Public Welfare (1971), Ind.App., 266 N.E.2d 805; Middlekamp v. State Exchange Finance Co. (1973), Ind.App., 290 N.E.2d 780. The appellee's Motion to Dismiss is sustained and this cause is...

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