Sacks v. Winkler, 20490
| Citation | 141 Ind.App. 13,226 N.E.2d 172,10 Ind.Dec. 432 |
| Decision Date | 15 May 1967 |
| Docket Number | No. 20490,No. 2,20490,2 |
| Parties | Jerome S. SACKS, Appellant, v. Lewis E. WINKLER, Clara S. Winkler, Appellees |
| Court | Court of Appeals of Indiana |
Sherwood Blue, Janet L. Roberts, Indianapolis, for appellant.
A. M. Thomas, Thomas, Huse, Buehl & Thomas, Indianapolis, for appellees.
This appeal emanates from the Marion Circuit Court of Marion County, as a result of said court's actions in dismissing appellant's (plaintiff below) complaint for want of prosecution.
The pertinent dates, following the filing of the complaint on the 12th day of May, 1961, are summarized as follows:
On June 28, 1961, the defendants filed their answer, thus putting the cause at issue. Nothing was done until September 22, 1964, when the trial court placed the case on call of the docket which was set for October 15, 1964.
Evidently it was taken off the call of the docket for the next pleading was filed on November 13, 1964. This was a petition for conditional examination of the plaintiff, and also an order on said petition was issued for plaintiff to appear for said examination on a day named. He did not appear.
On January 13, 1965, a second petition for conditional examination and order on same was filed and issued.
Then, on January 29, 1965, the defendant filed a motion to dismiss said cause of action in accordance with Burns' Ann.Stat. Section 2--901. The cause was dismissed on February 16, 1965, and on February 23, 1965, the plaintiff filed a motion to reinstate, which was granted but later was rescinded on the same date by the court.
On March 1, 1965, the defendant filed a motion in opposition to plaintiff's motion to reinstate. The trial court overruled plaintiff's motion to reinstate said cause on September 3, 1965.
On October 1, 1965, plaintiff filed his motion for a new trial. Since there had been no trial this motion was a nullity. Therefore, it could not serve to extend the time for perfecting the appeal.
On May 9, 1966, the transcript and assignment of errors was filed with the Clerk of the Supreme and Appellate Court.
It thus appears from the record that the cause was dismissed on February 16, 1965, but that the assignment of errors and transcript were not filed until May 9, 1966, as above stated.
It is well settled law that a dismissal of a cause of action by a trial court is a final judgment from which an appeal lies, and that a motion for a new trial in such cases is a nullity. Meier, etc. v. Soc. Sec. Adm....
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Monon R. Co. v. Citizens of Sherwood Forest Addition, Marion County, 1268A218
...becomes final, for the purposes of calculating the time for an appeal therefrom, this Court, in the case of Sacks v. Winkler et al. (1967), 141 Ind.App. 13, 226 N.E.2d 172, Reh. Den. 227 N.E.2d 177, at page 178, 'In his motion, appellant alleges several errors in our dismissal, which, in ef......
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Mohney v. State
...judgment, motions to re-open judgment, or motions to reconsider. Strate v. Strate (1971) Ind.App., 269 N.E.2d 568; Sacks v. Winkler (1967) 141 Ind.App. 13, 226 N.E.2d 172, 227 N.E.2d 177; Dawson v. Wright (1955) 234 Ind. 626, 129 N.E.2d 796; Andrews v. City of Richmond (1960) 131 Ind.App. 3......
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Berkemeier v. Rushville Nat. Bank, 1-883A243
...Administration, (1957) 237 Ind. 421, 146 N.E.2d 239; Harding v. Brown, (1969) 144 Ind.App. 528, 247 N.E.2d 536; Sacks v. Winkler, (1967) 141 Ind.App. 13, 226 N.E.2d 172. Since the original ruling on attorney fees was on default, and it was upon that default that a retrial was ordered, it is......
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Strate v. Strate
...to modify judgment, motions to vacate or set aside judgment, motions to re-open judgment or motions to reconsider. Sacks v. Winkler (1967), 141 Ind.App. 13, 226 N.E.2d 172, 227 N.E.2d 177; Dawson v. Wright (1955),234 Ind. 626, 129 N.E.2d 796; Andrews v. City of Richmond (1960), 131 Ind.App.......