Schmal v. Ernst

• Decision Date: 03 April 1979
• Docket Number: No. 3-776A179,3-776A179
• Citation: 387 N.E.2d 96,180 Ind.App. 137
• Parties: Thomas E. SCHMAL, Appellant (Defendant and Cross-Defendant Below), v. James ERNST and Joyce Ernst, Appellees (Defendants and Cross-Claimants Below).
• Court: Indiana Appellate Court

Page 96

387 N.E.2d 96

180 Ind.App. 137

Thomas E. SCHMAL, Appellant (Defendant and Cross-Defendant Below), v. James ERNST and Joyce Ernst, Appellees (Defendants and Cross-Claimants Below).

No. 3-776A179.

Court of Appeals of Indiana, Third District.

April 3, 1979.

William F. Carroll, Carroll, Barber & Sorbello, Crown Point, for appellant.

Michael L. Muenich, Hand, Muenich & Rodovich, Hammond, for appellees.

GARRARD, Presiding Judge.

The controversy between the parties before this court began in December of 1970 when Federal National Mortgage Association filed its complaint in foreclosure against Thomas E. and Betty L. Schmal and James and Joyce Ernst. The Schmals were the owners of the real estate in question and the Ernsts were purchasing it under contract. The Ernsts filed a third party complaint and cross claim against Thomas Schmal and the Lake Mortgage Company and the Schmals filed a cross claim against the Ernsts for possession and to foreclose the contract purchase interest. The Ernsts subsequently filed an amended third party complaint and cross claim consisting of five counts, two of which were withdrawn, against the Schmals, Lake Mortgage Company, Federal National Mortgage Association, William F. Carroll and Nick Roman, Jr. The third count alleged that the Ernsts had tendered $1,200 to William Carroll to hold in escrow pending settlement of the dispute and that such settlement was never reached but the money was never returned pursuant to the escrow agreement. The other counts, in effect, alleged a conspiracy to remove the Ernsts from the property and to cause the Ernsts to become defendants in the action to foreclose the mortgage. The cross claim demanded over $86,000 in damages.

William Carroll tendered the $1,200 escrow money to the court and was dismissed from the action. Shortly before trial the Ernsts petitioned the court to release the escrow money to them on the basis that there was no controversy over the fact that the money belonged to the Ernsts. Since Schmal had denied the allegations of count three, the petition was denied.

On March 23, 1972, the issues went to the jury which returned a general verdict against Thomas Schmal and assessed damages of $12,500. Judgment was entered on the verdict. Schmal appealed and the judgment was eventually affirmed. See State ex rel. Schmal v. Lake Superior Court (1975), 264 Ind. 73, 339 N.E.2d 58; Lake Mortgage Co., Inc. v. FNMA et al. (1975), 262 Ind. 601, 321 N.E.2d 556; Ernst v. Schmal (1974 Ind.App.), 308 N.E.2d 732.

Five months after the last appellate decision in this matter, the Ernsts again petitioned for release of the escrow money held by the Clerk of the Lake County Superior Court. The petition was again denied and the Ernsts filed a motion to correct errors assigning as error the failure of the court to release the money. Schmal did not contest the release of the money to the Ernsts but requested that it be credited against the judgment of $12,500. The court granted the motion and ordered that the money should be released to the Ernsts but that it was not to be credited against the judgment. Schmal appealed from this order by filing a praecipe and an appellate brief with the belief that he was appealing from an interlocutory order. The Ernsts contend that the order sustaining their motion to correct errors was a final judgment which required Schmal to file a motion to correct errors to preserve error for appeal. We need not reach the question of whether this order was interlocutory or final inasmuch as Schmal has followed the proper procedure to appeal the alleged error. Our Supreme Court, in P-M Gas & Wash Co., Inc. v. Smith (1978), Ind., 375 N.E.2d 592, has revised and clarified the procedures by which error is preserved for appeal. The Court held:

"(A) If a party wants to complain about the relief granted to another party, when that other party made a motion to correct error which was granted in whole or in part, then that party can appeal that order, and commence the process under Ind.R.Ap.P. 2(A).

(B) This would not require that party to make a motion to correct error in his own right. In that way, that party then becomes an appellant, and the regular appeal process obtains."

375 N.E.2d at 596, 597.

The Court further stated "(that) it is not necessary for that appellant to file a motion to correct error if appellant does not raise error himself. If appellant seeks (only to appeal the favorable relief given to appellee) because it was incorrect . . ., then it is not necessary for the appellant to do more than request relief on brief in the appellate...