State v. Heslar, 970S216
Decision Date | 20 January 1972 |
Docket Number | No. 970S216,970S216 |
Parties | STATE of Indiana, Appellant, v. Mabel Kathleen HESLAR, Executrix of the Estate of Ola Fred Heslar, Deceased, Appellee. |
Court | Indiana Supreme Court |
Appellee, Johnson Chevrolet Co., Inc. has petitioned for a rehearing in this cause. Appellee has raised two issues which were not discussed in our previous opinion. Johnson Chevrolet contends that since the appellant signed the judgment as approved it has no basis for appeal. We cannot agree. The situation is quite similar to that which arose in State v. Trotter (1938), 214 Ind. 68, 14 N.E.2d 550. It was there stated:
214 Ind. at 73, 14 N.E.2d at 552.
So too in the case at bar, it cannot seriously be contended that appellant intended to waive all errors and its right to appeal. The right of appeal is favored in the law and will not be deemed to have been waived except on clear and decisive grounds. Moore v. Moore (1922), 81 Ind.App. 169, 135 N.E. 362. There are certainly no clear and decisive grounds to indicate that appellant intended to waive its right to appeal, especially in light of the fact that a motion to correct errors was filed and an appeal promptly taken.
Appellee cites two cases for the proposition that such a signing constituted a waiver, Miller v. Miller (1967), 142 Ind.App. 90, 231 N.E.2d 828, and State v. Huebner (1952), 230 Ind. 461, 104 N.E.2d 385. Both can clearly be distinguished from the instant case. In the Miller case, both parties actively participated in drafting the decree and no appeal was taken. When one of the parties later attempted to collaterally attack the validity of the prior judgment the Appellant Court held that since he had received the benefits of the prior judgment he was not estopped from attacking it. Huebner involved a consent decree in which the parties together stipulated the finding of facts and the conclusions...
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