Sacks v. Winkler

• Decision Date: 14 June 1967
• Docket Number: No. 20490,No. 2,20490,2
• Citation: 141 Ind.App. 13,227 N.E.2d 177,10 Ind.Dec. 581
• Parties: Jerome S. SACKS, Appellant, v. Lewis E. WINKLER, and Clara S. Winkler, Appellees
• Court: Indiana Appellate Court

Page 177

227 N.E.2d 177

141 Ind.App. 13

Jerome S. SACKS, Appellant, v. Lewis E. WINKLER, and Clara S. Winkler, Appellees.

No. 20490.

Appellate Court of Indiana, Division No. 2.

June 14, 1967.

Sherwood Blue, Janet L. Roberts, Indianapolis, for appellant.

A. M. Thomas, of Thomas, Huse, Buehl & Thomas, Indianapolis, for appellees.

BIERLY, Judge.

Appellant has filed what he entitles a 'Motion to Reinstate Appeal.' Such a motion is proper only when the appeal has been dismissed for want of prosecution by this court in accordance with Burns' Ann.Stat. § 2--3230 (1964 Replacement). However, the substance rather than the title governs its true nature, and its substance is that of a petition for rehearing, and we shall treat it as such. See: Fort Wayne Mercantile, etc. Assn. v. Scott (1919), 71 Ind.App. 266, 123 N.E. 718, motion to reinstate denied, 71 Ind.App. 266, 124 N.E. 710.

The above 'Motion' was filed on May 31, 1967, following our opinion dismissing the action on May 15, 1967. Briefs in support of the said motion were filed on June 5, 1967.

In his motion, appellant alleges several errors in our dismissal, which, in effect, raise the question of when the judgment in the lower court became a final judgment. It is appellant's contention that by reason of his filing a motion to reinstate in the trial court, and by the trial court's action in setting same for oral argument, the judgment of dismissal did not become final until said motion was overruled by the trial court on September 3, 1965.

With this contention we cannot agree. As we pointed out in our dismissal, a dismissal of a cause in the trial court is a final judgment from which an appeal lies. Other pleadings, besides the motion to reinstate, which do not extend the time for an appeal, include: motions to modify a judgment, motions to vacate or set aside a judgment; Dawson et al. v. Wright, Mayor, etc., et al. (1955), 234 Ind. 626, 129 N.E.2d 796; motions to set aside a ruling overruling motion for a new trial; Stampfer v. Peter Hand Brewing Co. (1918), 67 Ind.App. 485, 118 N.E. 138.

The only circumstances in which a dismissal date does not become the date on which the time for appeal commences to run would be in the unusual instance when the trial court was without authority to dismiss in the first place, thus any attempted dismissal would be void and the court would be required to reinstate the cause. See: Slagle v. Valenziano (1963), 134 Ind.App. 360, 188 N.E.2d 286. Of course, where a new complaint is filed pursuant to Burns' Ann.Stat. § 2--1068 (1946 Replacement), the appeal time begins to run when judgment is rendered on the new complaint rather than on the date of dismissal of the old cause. See: State ex rel. Klutey v. Daviess Circuit Court (1964), 245 Ind. 400, 199 N.E.2d 335.

Appellant also alleges error in our opinion dismissing this cause in that a dismissal for want of prosecution is not one of the grounds under Burns' Ann.Stat. § 2--901 (1946) Replacement) by which the trial court dismissed. This is true today, and has been since July 1, 1965, when Supreme Court Rule 1--4C took effect. But, in the case at bar, the old statutory provision was in effect during the dismissal and when appellant filed its motion to reinstate in the trial court.

Finally, appellant alleges we failed to consider in our opinion the fact that the time for...