State v. Kushner
| Decision Date | 20 June 1974 |
| Docket Number | No. 3--673A69,3--673A69 |
| Citation | 160 Ind.App. 464,312 N.E.2d 523 |
| Parties | STATE of Indiana, Appellant, v. Abe KUSHNER et al., Northern Indiana Bank and Trust Company, Appellees. |
| Court | Indiana Appellate Court |
Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellant.
Charles T. Clifford, Valparaiso, for appellee; Chester, Clifford, Hoeppner & Houran, Valparaiso, of counsel.
ON THE APPELLEES' MOTION TO DISMISS
This cause is pending before the Court on the appellees' motion to dismiss which alleges that the cause must be dismissed because the trial court's decision of March 19, 1973, sustaining the appellees' motion to correct errors, and granting a new trial subject to additure became the final judgment to which a motion to correct errors should have been filed by the State. However, no motion to correct errors was filed directed to this final judgment.
The record reveals that this was an action by the State of Indiana to condemn a strip of land owned by the appellees Kushner and Morris, and leased by the appellee Northern Indiana Bank and Trust Company. Pursuant to the statute, the court appointed appraisers to assess the damages to which the defendants might be entitled. The appraisers, after being duly sworn, viewed the real estate to be condemned, and found the total damages to be in the sum of $34,000.00.
The defendants filed their exceptions to the appraisers' report, after which the plaintiff filed its exceptions to the report and a demand for trial by jury. After certain discovery procedures, the cause came on for trial by jury, at the conclusion of which the jury returned its verdict as follows:
'We, the jury find for the defendants Abe Kushner, Herbert J. Morris and Marian L. Morris, and assess their damages in the amount of $19,000.00.'
on which the trial court entered its judgment as follows:
'ALL OF WHICH IS SO ORDERED, ADJUDGED AND DECREED by the Court.'
Thereafter the defendants-appellees filed their motion to correct errors. After conducting a hearing on the motion and having taken the same under advisement, the court subsequently entered his findings of fact and ruling on the motion to correct errors, which, omitting formal parts, reads as follows:
'This matter having been previously submitted to the Court on defendants' Motion to Correct Erros, and the Court having heard argument of counsel, said Motion to Correct Errors is now granted.
'The Court further finds that as a result of the appropriation of defendants' land in these proceedings, damages were sustained as follows:
remaining parcel of land to any access to Indiana State Highway #149.
remaining land had no access to State Highway #149 by virtue of the 'local service road' to the North of defendants' remaining land.
tendered Exhibit No. 3 could not be used for the benefit of defendants' remaining parcel.
remaining parcel because of the lack of any direct access to Indiana State Highway #149.
Exhibit No. 3 that the 'local service road' described in said Exhibit No. 3 was not created for the benefit of defendants' remaining parcel, and no evidence to the contrary was presented by plaintiff, State of Indiana.
'IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that the Motion to Correct Errors be, and it is hereby granted, subject to additure in the amount of Fifteen Thousand ($15,000.00) Dollars, making the total judgment for damages or just compensation in the amount of Thirty-four Thousand ($34,000.00) Dollars.
'IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that plaintiff, State of Indiana, is given thirty (30) days from this date to consent or refuse said additure.
'ALL OF WHICH IS ORDERED, ADJUDGED and DECREED by the Court this 19th day of March, 1973.'
The effect of the court's ruling on the motion to correct errors is that he changed the earlier judgment of damages in the amount of $19,000.00 to $34,000.00. It is readily apparent that in so doing, he made new findings that were not a part of the original judgment. This being the case, the plaintiff-appellant should have filed a motion to correct errors addressed to this judgment as a condition precedent to any appeal therefrom.
In the case of State v. Deprez (1973), Ind., 296 N.E.2d 120, the Supreme Court considered the problem raised when the trial court, in ruling on a motion to correct errors, does something other than merely granting or denying the motion. In Deprez the trial court first entered a simple judgment of dismissal. Thereafter, in ruling on the motion to correct errors, the trial court entered special findings of...
To continue reading
Request your trial
-
P-M Gas & Wash Co., Inc. v. Smith
...Commission (1974), 161 Ind.App. 232, 315 N.E.2d 374; Easley v. Williams (1974), 161 Ind.App. 24, 314 N.E.2d 105; State v. Kushner (1974), 160 Ind.App. 464, 312 N.E.2d 523; Davis v. Davis (1974) 159 Ind.App. 290, 306 N.E.2d 377. All of the cases cited above have created a plethora of procedu......
-
Hansbrough v. Indiana Revenue Bd.
...Davis v. Davis (1974), Ind.App., 306 N.E.2d 377; Koziol v. Lake County Plan Comm. (1974), Ind.App., 315 N.E.2d 374; State v. Kushner (1974), Ind.App., 312 N.E.2d 523; Wyss v. Wyss (1974), Ind.App., 311 N.E.2d The leading case is Deprez, supra. In a similar factual setting the court held: 'T......
-
Lake County Title Co. v. Root Enterprises, Inc.
...413, 296 N.E.2d 120; Davis v. Davis (1974), Ind.App., 306 N.E.2d 377; Wyss v. Wyss (1974), Ind.App., 311 N.E.2d 621; State v. Kushner (1974), Ind.App., 312 N.E.2d 523; Koziol v. Lake County Plan Comm'n (1974), Ind.App., 315 N.E.2d 374; Weber v. Penn-Harris-Madison School Corp. (1974), Ind.A......
-
Stout v. Mercer
... ... In Bennett v. State (1973), Ind.App., 304 N.E.2d 827, this court said: ... 'The requirement of specificity of the facts and grounds upon which errors are based has been ... ...