Preston v. Hammond, 3--772A33

• Decision Date: 11 October 1972
• Docket Number: No. 3--772A33,3--772A33
• Citation: 287 N.E.2d 774,153 Ind.App. 447
• Parties: Nelson C. PRESTON and Margarette Preston, Appellants, v. J. L. HAMMOND et al., Appellees.
• Court: Indiana Appellate Court

Page 774

287 N.E.2d 774

153 Ind.App. 447

Nelson C. PRESTON and Margarette Preston, Appellants, v. J. L. HAMMOND et al., Appellees.

No. 3--772A33.

Court of Appeals of Indiana, Third District.

Oct. 11, 1972.

Rehearing Denied Nov. 8, 1972.

James P. Dunn, Ft. Wayne, for appellants.

Robert J. Parrish and Roger S. Moliere, Arthur W. Fruechtenicht, John E. Hoffman, Jr., of Hoffman, Moppert, Solomon & Miller, Ft. Wayne, for appellees.

ON APPELLEES' MOTION TO DISMISS OR AFFIRM

PER CURIAM.

This matter is before the Court on Motions to Dismiss or Affirm filed by the appellee Home Loan and Savings Association and by the appellees Hammond.

The plaintiffs-appellants' claimed error in this Court is the overruling of their Motion to Correct Errors by the trial court. The Motion to Correct Errors filed in the trial court alleges three errors, as follows:

'1. That the Court was without jurisdiction to render this decision under TR. 53.1 Indiana Rules of Procedure.

'2. That the decesion (sic) is not supported by sufficient evidence.

'3. That the decesion (sic) is contrary to law.'

Concerning the first alleged error, the memorandum and brief attached to appellants' Motion to Correct Errors states that the cause was submitted to the Court without the intervention of a jury on July 13, 1971, and that the decision was rendered on December 23, 1971, more than ninety days after submission. We have searched the record of the proceedings filed herein by the appellants and do not find that appellants' counsel took any steps to effectuate the withdrawal of submission as provided for by TR. 53.1, IC 1971, 34--5--1--1, Rule 53.1. From the record before us, it appears that the first time counsel attempted to raise this question was after judgment, in his Motion to Correct Errors.

Our Supreme Court has spoken on this subject in the case of Jolly v. Modisett (1971), Inc., 275 N.E.2d 780. In that case the issues had been held under advisement more than ninety days when the trial judge entered judgment. After judgment was entered, the petitioners filed their praecipe to the Clerk of the trial court requesting the Clerk to notify the trial judge and the Supreme Court that the cause had been withdrawn. Our Supreme Court stated:

'Notwithstanding that the trial judge held the matter under advisement for an undue period, to withdraw the submission after the decision has been made would further delay rather than expedite the litigation; and to permit a party to submit his cause and await the decision of the trial judge beyond the ninety day period, without taking the steps available to him to effect a withdrawal of the submission and then to deny the jurisdiction, if and when the decision goes against him, would be to permit him to take advantage of error that he had waived. By estoppel, the party will not be permitted to take advantage of errors which he himself committed or invited or induced the trial court to commit, or which were the natural consequences of his own neglect or misconduct. Ray v. State (1969), 252 Ind. 395, 248 N.E.2d 337; Motor Express, Inc. of Indiana v. Chase (1963), 135 Ind.App. 544, 193 N.E.2d 78; Barton v. State (1960) 240 Ind. 257, 163 N.E.2d 600; Armstrong v. Presslor (1947), 225 Ind. 291, 73 N.E.2d 751; Billingsley v. Groves (1854), 5 Ind. 533; 5 C.J.S. Appeal and Error § 1501.'

Thus, in the case now before us, when counsel did not promptly initiate proceedings to withdraw submission of the issues after the ninety day period provided for by TR. 53.1 had elapsed, but waited until after...