Salem Bank & Trust Co. v. Whitcomb, 272A68
Decision Date | 29 March 1974 |
Docket Number | No. 272A68,272A68 |
Citation | 261 Ind. 614,308 N.E.2d 707 |
Parties | SALEM BANK AND TRUST COMPANY, Plaintiff-Appellant, v. Edgar D. WHITCOMB et al., Defendants-Appellees. |
Court | Indiana Supreme Court |
Appellant seeks transfer from a unanimous opinion of District One of the Court of Appeals. Appellant sought a determination as to whether the trial court properly granted defendant-appellees' motion to dismiss. The Court of Appeals properly held that as the trial court had before it interrogatories, the motion to dismiss should have been considered as a motion for summary judgment under Ind. Rules of Proc., Rule TR. 56, IC 1971, 34--5--1--1.
In the trial court plaintiff-appellant filed what was denominated 'Motion for Order Compelling Answers to Interrogatories,' the seventh paragraph of which reads as follows:
This motion was granted and the interrogatories were filed prior to argument and ruling on the motion to dismiss. However, even if the appellant had no specifically called the court's attention to the interrogatories, they were, in fact, filed prior to the ruling on the motion to dismiss and, thus, had been submitted to the court.
In sustaining the motion to dismiss, the trial court made no statement as to whether or not the interrogatories were being considered. Thus, the Court of Appeals properly determined that the motion to dismiss was automatically converted to a motion for summary judgment under Rule TR. 12(B)(8), IC 1971, 34--5--1--1, and that the trial court erred in not following the procedures set out in Rule TR. 56.
Appellant argues that the Court of Appeals' opinion contravenes Gladis v. Melloh (1971), Ind.App., 273 N.E.2d 767, 27 Ind.Dec. 131, by holding that the trial court erred in ruling on the motion to dismiss as such when extraneous matters were before it.
Appellant takes the position that there is a holding in the Gladis case that a trial court need not consider extraneous matters before it when passing upon a motion to dismiss. An examination of the Gladis case and the transcript filed therewith does not support appellant in this contention. In the Gladis case Judge Sharp parenthetically observes:
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