Myers v. Hoover

• Decision Date: 15 August 1973
• Docket Number: No. 1--173A9,1--173A9
• Citation: 300 N.E.2d 110,157 Ind.App. 310
• Parties: George W. MYERS, Appellant (Defendant below), v. Harold T. HOOVER, Appellee (Plaintiff below),
• Court: Indiana Appellate Court

Page 110

300 N.E.2d 110

157 Ind.App. 310

George W. MYERS, Appellant (Defendant below), v. Harold T. HOOVER, Appellee (Plaintiff below),

No. 1--173A9.

Court of Appeals of Indiana, First District.

Aug. 15, 1973.

Rehearing Denied Sept. 18, 1973.

John T. Cook, Jan L. Chalfant, Hunter, McCoy, Sullivan & Chalfant, Winchester, for appellant.

James H. Ronald, Richmond, for appellee.

LYBROOK, Judge.

Defendant-appellant Myers appeals from the trial court's decision granting plaintiff-appellee Hoover's Motion of Correct Errors filed after Hoover's action for proceedings supplemental to execution against Myers had been dismissed.

This action stems from an Industrial Board award in favor of Hoover and against Myers. The award was filed in the Randolph Circuit Court on July 14, 1961, and a money judgment was entered thereon against Myers the same day.

On July 13, 1971, ten years less one day from the entry of judgment, Hoover caused an execution to be issued against Myers. Said execution was returned unsatisfied by the sheriff on August 4, 1971.

On January 31, 1972, Hoover initiated proceedings supplemental to execution, and Myers was ordered to appear and answer. On March 3, 1972, Hoover filed a verified motion in garnishment with interrogatories, and Myers was ordered to appear and answer.

On March 16, 1972, Myers filed his answer to the motion in garnishment and also a motion to dismiss based upon the bar of the statute of limitations, being I.C.1971, 34--1--2--2; Ind.Ann.Stat. § 2--602 (Burns 1967).

The issues were submitted for hearing, and on May 10, 1972, Myer's motion to dismiss was granted. Hoover timely filed a Motion to Correct Errors which, following a hearing and argument, was granted, and Myers appeals.

Myers asserts that the trial court erred in granting Hoover's Motion to Correct Errors and presents the following issues for review:

(1) Whether the trial court erred in granting Hoover's Motion to Correct Errors inasmuch as Trial Rule 59(G) does not require said motion as a condition to appeal in proceedings supplemental to execution.

(2) Whether the trial court erred in finding that the proceedings supplemental to execution were not subject to the defense of the statute of limitations.

(3) Whether the trial court erred in determining that Hoover's action was 'pending' within the meaning of Trial Rule 84.

(4) Whether the trial court erred in applying the 1970 Indiana Rules of Procedure retrospectively thereby working an injustice against Myers.

Myers first contends that Hoover's Motion to Correct Errors was a nullity and improper in the case at bar and that Hoover should have exercised his right to an immediate appeal without filing said motion. He argues that the trial court had no jurisdiction to grant the motion since it is not required in proceedings supplemental to execution under Trial Rule 59(G), which reads:

'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.' (Our emphasis.)

Under the terms of the rule, the filing of a Motion to Correct Errors clearly is not a condition precedent to appeal in the case at bar. However, we are unable to construe the rule as prohibiting the filing of said motion or denying the trial court jurisdiction to entertain the same. Hence, Myer's first specification of error must fail.

The second issue for determination is whether the trial court erred in finding that Hoover's proceedings supplemental to execution were not subject to the defense of the statute of limitations.

Myers contends that Hoover's proceedings are barred by a valid defense of the statute of limitations, being I.C.1971, 34--1--2--2; Ind.Ann.Stat. § 2--602 (Burns 1967), which reads in pertinent part:

'The following actions shall be commenced within the periods herein prescribed after the cause of action has accrued, and not afterwards.

'Sixth . . . on judgments of courts of record . . . within ten (10) years . . ..' (Our emphasis.)

Prior to the enactment of the 1970 Rules of Procedure, it was well established that proceedings supplemental to execution were filed as new and independent civil actions. Ettinger v. Robbins (1945), 223 Ind. 168, 59 N.E.2d 118; Hutchinson v. Trauerman (1887), 112 Ind. 21, 13 N.E. 412; Baker v. State ex rel. Mills (1887), 109 Ind. 47, 9 N.E. 711; Burkett v. Holman (1885), 104 Ind. 6, 3 N.E. 406.

The initiation of such proceedings is now governed by Trial Rule 69(E) which provides:

'(E) proceedings supplemental to execution. Notwithstanding any other statute to the contrary, proceedings supplemental to execution may be enforced by verified motion or with affidavits in the court where the judgment is rendered alleging generally

(1) that the plaintiff owns the described judgment against the defendant

(2) that the plaintiff has no cause to believe that levy of execution against the defendant will satisfy the judgment (3) that the defendant be ordered to appear before the court to answer as to his non-exempt property subject to execution or proceedings supplemental to execution or to apply any such specified or unspecified property towards satisfaction of the judgment; and,

(4) if any person is named as garnishee, that garnishee has or will have specified or unspecified nonexempt property of, or an obligation owing to the judgment debtor subject to execution or proceedings supplemental to execution, and that the garnishee be ordered to appear and answer concerning the same or answer interrogatories submitted with the motion. If the court determines that the motion meets the foregoing requirements it shall, ex parte and without notice, order the judgment debtor, other named parties defendant and the garnishee to appear for a hearing thereon or to answer the interrogatories attached to the motion, or both. The motion, along with the court's order stating the time for the appearance and hearing or the time for the answer to interrogatories submitted with the motion, shall be served upon the judgment debtor as provided in Rule 5, and other parties and the garnishee shall be entitled to service of process as provided in Rule 4. The date fixed for appearance and hearing or answer to interrogatories shall be not less than twenty (20) days after service. No further pleadings shall be required, and the case shall be heard and determined and property ordered applied towards the judgment in accordance with statutes allowing proceedings supplementary to execution. In aid of the judgment or execution, the judgment creditor or his successor in interest of record and the judgment debtor may utilize the discovery provisions of these rules in the manner provided in these rules for discovery or as provided under the laws allowing proceedings supplemental.'

The question for determination with respect to this issue is whether proceedings under Trial Rule 69(E) constitute a new and independent civil action.

Given the terms of Trial Rule 69(E) and the procedure thereunder, we are compelled to the conclusion that in adopting the new rule, our Supreme Court intended that proceedings supplemental to execution no longer be considered new and independent civil actions. Rather, they appear to be a mere continuation of the original cause.

Although we are unable to find any case law in support of this view, we take note of the Civil Code Study Commission's comment on Trial Rule 69(E) which reads in part:

'Rule 69(e) retains the basic statutes upon the subject but introduces simpler pleadings and procedure. However, this rule makes some significant changes. For one thing, the court rendering judgment retains venue or jurisdiction over proceedings supplemental, contrary to prior law which fixed venue at the defendant's residence. Relief is allowed by motion, and the order to appear in proceedings supplemental is granted ex parte without hearing, thus clarifying present proceedures. Necessarily, this means that the remedy is merely a continuation of the original action both in name and in cause number. This rule proceeds upon the assumption that the judgment defendant is under a duty to pay the plaintiff or inform him of assets subject to execution if the defendant insists that the plaintiff must pursue this route.' (Our emphasis.)

Given the above interpretation of the new rule it necessarily follows that proceedings supplemental to execution are not an 'action' on a judgment within the terms of I.C.1971, 32--1--2--2; Ind.Ann.Stat. § 2--602 (Burns 1967), and that statute may not be raised as a defense.

This conclusion is further strengthened by the initial phrase in the rule, 'Notwithstanding any other statute to the contrary proceedings supplemental to execution may be enforced by . . ..'

Myers' argument that Hoover's judgment expired ten years after entry is without foundation. The following statutes imply that the life of a judgment continues following the initial ten year period: I.C.1971, 34--1--34--2; Ind.Ann.Stat. § 2--3306 (Burns 1968):

'After the lapse of ten (10) years from the entry of judgment, or issuing of an execution, an execution can be issued only on leave of court, upon motion, after ten (10) days' personal notice to the...