Strate v. Strate, No. 670A98

Docket NºNo. 670A98
Citation149 Ind.App. 32, 269 N.E.2d 568
Case DateMay 26, 1971
CourtCourt of Appeals of Indiana

Page 568

269 N.E.2d 568
149 Ind.App. 32
Mary I. STRATE, Appellant,
v.
Albert K. STRATE, Appellee.
No. 670A98.
Appellate Court of Indiana, In Bank.
May 26, 1971.
Rehearing Denied July 13, 1971.

Thomas M. Munger, Lafayette, for appellant.

James W. Bradford, Indianapolis, for appellee; William C. Burns, Lafayette, of counsel.

Page 569

ON APPELLEE'S MOTION TO DISMISS

PER CURIAM.

This matter is before us on the appellee's Motion to Dismiss.

[149 Ind.App. 33] It appears from the record that this was a cause of action for divorce. After trial, the trial court found for the plaintiff-appellant and entered judgment on August 13, 1969. Thereafter, on November 10, 1969, the plaintiff filed a Petition To Vacate and Modify and Set Aside Part of Judgment. At no time in this interval did the plaintiff file a motion for new trial.

Appellee's Motion to Dismiss alleges as cause therefor that the filing of a motion for new trial within thirty days from the court's decision was a condition precedent to appeal, and that since the transcript and record of this cause were not filed with the Clerk of the Supreme and Appellate Courts within ninety days from the date of judgment, that this Court does not have jurisdiction of this appeal.

Concerning the first specification of appellee's motion, that the timely filing of a motion for new trial was a condition precedent to appeal, we must bear in mind the judgment herein was entered in August of 1969, before the adoption of the current rules of procedure. While it is not accurate to say that a motion for new trial was a condition precedent to appeal, certain errors were required, by statute and rule, to be presented by a motion for new trial. Any such errors which occurred up to the time of the filing of the motion for new trial and which were not included in the motion were waived.

In August of 1969, both Supreme Court Rule 1--14 and the statute pertaining to motions for new trial (Burns' Ind.Stat.Anno. § 2--2403) required the motion for new trial to be filed within thirty days from the date of the verdict or decision. The timely filing of the motion for new trial was held to be jurisdictional, and when the motion was not filed within the time allowed, no question concerning its overruling could be presented on appeal. Natthew v. Gavit (1966), 138 Ind.App. 425, 214 N.E.2d 404; Sutton v. State (1960), 240 Ind. 512, 166 N.E.2d 651.

Instead of filing a motion for new trial, plaintiff filed her [149 Ind.App. 34] Petition To Vacate and Modify and Set Aside Part of Judgment. In response to the motion to dismiss, plaintiff-appellant argues that a trial court retains jurisdiction over its judgments for a period of time within which the court may modify, vacate, or completely change its judgment. That is true, of course. However, that fact does not nullify the requirement of the timely filing of a motion for new trial. Appellant cites the case of Holmes v. Holmes (1969), Ind.App., 247 N.E.2d 564, in support of her argument. The Holmes case, however, is distinguishable in that the jurisdictional question was...

To continue reading

Request your trial
2 practice notes
  • Mohney v. State, No. 3--773--A--89
    • United States
    • January 30, 1974
    ...motions to vacate or set aside judgment, motions to re-open judgment, or motions to reconsider. Strate v. Strate (1971) Ind.App., 269 N.E.2d 568; Sacks v. Winkler (1967) 141 Ind.App. 13, 226 N.E.2d 172, 227 N.E.2d 177; Dawson v. Wright (1955) 234 Ind. 626, 129 N.E.2d 796; Andrews v. City of......
  • Fry v. Indiana Dept. of Correction, No. 52A02-0802-CV-172.
    • United States
    • Indiana Court of Appeals of Indiana
    • September 24, 2008
    ...these rules." Further, it has long been held that the time for appeal is not extended by motions to reconsider. See Strate v. Strate, 149 Ind.App. 32, 269 N.E.2d 568, 569 The default judgment order was entered on January 14, 2008. Fry filed his notice of appeal on February 14, 2008, thirty-......
2 cases
  • Mohney v. State, No. 3--773--A--89
    • United States
    • January 30, 1974
    ...motions to vacate or set aside judgment, motions to re-open judgment, or motions to reconsider. Strate v. Strate (1971) Ind.App., 269 N.E.2d 568; Sacks v. Winkler (1967) 141 Ind.App. 13, 226 N.E.2d 172, 227 N.E.2d 177; Dawson v. Wright (1955) 234 Ind. 626, 129 N.E.2d 796; Andrews v. City of......
  • Fry v. Indiana Dept. of Correction, No. 52A02-0802-CV-172.
    • United States
    • Indiana Court of Appeals of Indiana
    • September 24, 2008
    ...these rules." Further, it has long been held that the time for appeal is not extended by motions to reconsider. See Strate v. Strate, 149 Ind.App. 32, 269 N.E.2d 568, 569 The default judgment order was entered on January 14, 2008. Fry filed his notice of appeal on February 14, 2008, thirty-......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT