Pitts v. Wooldridge

• Decision Date: 03 September 1974
• Docket Number: No. 1--574A86,1--574A86
• Citation: 161 Ind.App. 404,315 N.E.2d 736
• Parties: Floyd E. PITTS, Appellant (Defendant Below), v. Lavon WOOLDRIDGE, Appellee (Plaintiff Below), John Miller et al., Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 736

315 N.E.2d 736

161 Ind.App. 404

Floyd E. PITTS, Appellant (Defendant Below), v. Lavon WOOLDRIDGE, Appellee (Plaintiff Below) John Miller et al., Appellees (Defendants Below).

No. 1--574A86.

Court of Appeals of Indiana, First District.

Sept. 3, 1974.

J. Lee McNeeley, Shelbyville, for appellant.

William K. Byrum, Fulmer, Byrum & Gagnon, Indianapolis, Phillip J. Badell, Badell & Malson, Rushville, for appellees.

ON THE APPELLEE'S MOTION TO DISMISS APPEAL OR AFFIRM JUDGMENT

PER CURIAM.

This cause is pending before the Court on the Motion of the Appellee Lavon Wooldridge to Dismiss Appeal or in the Alternative to Affirm Judgment. Said Motion alleges in substance that there has been no final judgment rendered, and that if the appeal is from an interlocutory order, the record of the proceedings was not timely filed.

Our examination of the record reveals that this is an attempted appeal from an order of the trial court denying appellant-defendant Pitts' motion for summary judgment. Pitts filed a motion to correct errors directed to this order which was subsequently overruled, and this appeal followed. We must agree with appellee that an order denying a motion for summary judgment is not a final judgment. Neither is it of the class of appealable interlocutory orders.

In Wright and Miller, Federal Practice and Procedure, Vol. 10, § 2715, p. 424, we find the following:

'A denial of summary judgment indicates that the moving party has failed to establish that there is no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law; a trial therefore is necessary. As a result, the denial of a Rule 56 motion is an interlocutory order from which no appeal is available until the entry of judgment following the trial on the merits.'

The annotation continues on to indicate that occasionally an order falls within one of the narrow exceptions to the prohibition of piecemeal appeals and the court can certify an appeal. See cases cited at Footnote 72, p. 426.

Our rules make no provision for an appeal from an order denying a motion for summary judgment, either as an interlocutory order or as a final judgment. Rule TR. 56(E) provides in part:

'Denial of summary judgment may be challenged by a motion to correct errors after a final judgment or order is entered.'

In Harvey, Indiana Practice, Vol. 3, p. 560, the author construes the above-quoted language from TR. 56(E) as follows:

'This rule specifically states that a denial of summary judgment cannot be appealed directly, but must be challenged by a motion to correct errors.'

While we differ with that interpretation of the rule, primarily because of the use of the permissive word 'may' in the rule, as opposed to a mandatory word such as 'must' or 'shall', nonetheless we agree that an order denying a motion for summary judgment is not an appealable interlocutory order as defined by Supreme Court rule and opinion.

In the case of Anthrop v. Tippecanoe School Corporation (1972), 257 Ind. 578, 277 N.E.2d 169, our Supreme Court stated:

'An appeal from an interlocutory order lies only when expressly authorized, and the authorization is to be strictly construed. Any attempt to perfect such an appeal where there is no authorization warrants a dismissal. Seaney v. Ayres (1958), 238 Ind. 493, 151 N.E.2d 295, and Chapman v. Chapman (1953), 231 Ind. 556, 109 N.E.2d 724.'

In the case of Richards v. Crown Point Community School Corp. (1971), 256 Ind. 347, 269 N.E.2d 5, our Supreme Court, in defining an appealable interlocutory order, stated:

'Of further moment here is the fact that, even if it were an interlocutory order and not a final judgment, the ruling of the trial court did not deal with a subject which would render the order an appealable interlocutory order as this court defines that term.

'We refer to the provisions embodied in Acts of 1969, ch. 191, Sec. 1, Rule 72b, IC 1971 34--5--1--Rule 72(b). As is provided there:

'(b) Appeals from interlocutory orders. An appeal to the Supreme Court may be taken from an interlocutory order of any trial court or judge thereof in the following cases:

(1) For the payment of money or to compel the execution of any instrument of writing, or the delivery or assignment of any securities, evidences of debt, documents or things in action;

(2) For the delivery of the possession of...