Pitts v. Wooldridge, No. 1--574A86
| Docket Nº | No. 1--574A86 |
| Citation | 161 Ind.App. 404, 315 N.E.2d 736 |
| Case Date | September 03, 1974 |
| Court | Court of Appeals of Indiana |
Page 736
v.
Lavon WOOLDRIDGE, Appellee (Plaintiff Below),
John Miller et al., Appellees (Defendants Below).
[161 Ind.App. 405] 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
Page 737
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[161 Ind.App. 406] 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...
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City of Fort Wayne v. Cameron, No. 3--275A23
...Rule 72(b). See Richards v. Crown Point Community School Corp. (1971), 256 Ind. 347, 269 N.E.2d 5; Pitts v. Woolridge (1974), Ind.App., 315 N.E.2d 736. The sole issue presented for review is whether the trial court erred in denying the City's motion for summary judgment. The applicable prin......
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Keith v. Mendus, 45A05-9409-CV-357
...is not a final appealable judgment. Loving v. Ponderosa Systems, Inc. (1985), Ind., 479 N.E.2d 531, 534; Pitts v. Wooldridge (1974), 161 Ind.App. 404, 315 N.E.2d 736. Such a denial does not irretrievably dispose of one or more issues between the parties; neither does it determine nor forecl......
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State v. Totty, 1-1179A301
...merits. Ind.Rules of Procedure, Trial Rule 56(E). See Manning v. Allgood, (1980) Ind.App., 412 N.E.2d 811; Pitts v. Wooldridge, (1974) 161 Ind.App. 404, 315 N.E.2d We hold that the state of the record is such that the State did not waive its right to challenge the ruling denying the summary......
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Wallace v. Indiana Ins. Co., 1-781A211
...Cooperative, Inc. v. Civil City of Tell City, Perry County, (1979) Ind.App., 384 N.E.2d 1145; Kasten, supra; Pitts v. Wooldridge, (1974) 161 Ind.App. 404, 315 N.E.2d 736. Ordinarily, the denial of a summary judgment motion is not an appealable interlocutory order unless the trial court expr......
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City of Fort Wayne v. Cameron, No. 3--275A23
...Rule 72(b). See Richards v. Crown Point Community School Corp. (1971), 256 Ind. 347, 269 N.E.2d 5; Pitts v. Woolridge (1974), Ind.App., 315 N.E.2d 736. The sole issue presented for review is whether the trial court erred in denying the City's motion for summary judgment. The applicable prin......
-
Keith v. Mendus, 45A05-9409-CV-357
...is not a final appealable judgment. Loving v. Ponderosa Systems, Inc. (1985), Ind., 479 N.E.2d 531, 534; Pitts v. Wooldridge (1974), 161 Ind.App. 404, 315 N.E.2d 736. Such a denial does not irretrievably dispose of one or more issues between the parties; neither does it determine nor forecl......
-
State v. Totty, 1-1179A301
...merits. Ind.Rules of Procedure, Trial Rule 56(E). See Manning v. Allgood, (1980) Ind.App., 412 N.E.2d 811; Pitts v. Wooldridge, (1974) 161 Ind.App. 404, 315 N.E.2d We hold that the state of the record is such that the State did not waive its right to challenge the ruling denying the summary......
-
Wallace v. Indiana Ins. Co., 1-781A211
...Cooperative, Inc. v. Civil City of Tell City, Perry County, (1979) Ind.App., 384 N.E.2d 1145; Kasten, supra; Pitts v. Wooldridge, (1974) 161 Ind.App. 404, 315 N.E.2d 736. Ordinarily, the denial of a summary judgment motion is not an appealable interlocutory order unless the trial court expr......