T. S. v. B. J. S.
Decision Date | 27 December 1977 |
Docket Number | No. 1677A123,1677A123 |
Parties | T. S., Respondent-Appellant, v. B. J. S., Petitioner-Appellee. |
Court | Indiana Appellate Court |
Curtis V. Kimmell, L. Edward Cummings, Kimmell, Funk & Cummings, Vincennes, for respondent-appellant.
Jeffrey B. Kolb, Emison, Emison & Doolittle, Vincennes, for petitioner-appellee.
granting the motion to correct errors filed by petitioner-appellee B. J. S. and ordering a new trial.
The facts necessary for disposition of this appeal are as follows: B. J. S. filed her petition November 26, 1973, seeking to have T. S. adjudicated the father of her child born October 12, 1973. After hearing testimony, the trial court entered judgment against B. J. S. B. J. S. filed her motion to correct errors March 2, 1976, and T. S. filed a response to that motion March 17, 1976.
The trial court granted the motion to correct errors January 5, 1977, and ordered a new trial. T. S. filed a motion to correct errors March 4, 1977, alleging that the trial court erred in granting the motion to correct errors and in ordering a new trial. On March 21, 1977, the trial court overruled the motion to correct errors filed by T. S. T. S. filed his praecipe April 13, 1977, and filed the record with the Court of Appeals June 15, 1977.
In this opinion we reach one issue: Did T. S. comply with procedural requirements for initiating his appeal?
We dismiss the appeal.
The trial court granted the motion to correct errors filed by B. J. S. and ordered a new trial. T. S. filed a motion to correct errors fifty-eight days later. After the trial court overruled his motion to correct errors, T. S. filed a praecipe.
B. J. S. argues that no motion to correct errors was proper after the trial court granted her motion to correct errors and ordered a new trial. She contends that any praecipe filed by T. S. was due within thirty days after the trial court granted her motion to correct errors. T. S. has filed no reply brief. Therefore, we must respond to this argument presented in the brief of B. J. S. without having benefit of any argument from T. S. on the issue.
Ind. Rules of Procedure, Appellate Rule 4(A) provides, in part:
In State v. Deprez (1973), 260 Ind. 413, 420, 296 N.E.2d 120, 124, the Indiana Supreme Court was called upon to interpret Rule AP. 4. The trial court had entered judgment dismissing the State's condemnation action. Although the trial court denied the State's motion to correct errors, the trial court amended its judgment of dismissal by filing certain Special Findings of Fact and Conclusions of Law. The State brought its appeal without filing a motion to correct errors directed to the amended judgment entry. The Supreme Court dismissed the appeal, and Chief Justice Arterburn explained the reason for the dismissal:
Judge Buchanan quoted from Deprez in his opinion for the Court of Appeals, Second District, in Davis v. Davis (1974), Ind.App., 306 N.E.2d 377, 380, and then wrote:
At footnote numbered one, Judge Buchanan explained:
."
We agree with these statements contained in Davis, supra.
In Easley v. Williams (1974), Ind.App., 314 N.E.2d 105, the trial court had granted plaintiff-appellee Williams' motion to correct errors and had ordered a new trial. Defendants-appellants Harmless filed no motion to correct errors before initiating their appeal. Williams filed a motion to dismiss the appeal for failure to file a motion to correct errors. The Court of Appeals, First District, denied the motion to dismiss and explained at 314 N.E.2d 105, 108:
2
In Miller v. Mansfield (1975), Ind.App., 330 N.E.2d 113, 115, the trial court granted in part and overruled in part a motion to correct errors filed by plaintiffs-appellees Mansfield. The trial court set aside the verdict of the jury and ordered a new trial. Defendants-appellants Miller appealed from the granting of the Mansfields' motion to correct errors.
Relying principally upon State v. Deprez, supra; Davis v. Davis, supra, and Weber v. Penn-Harris-Madison School Corporation (1974), Ind.App., 317 N.E.2d 811, Judge Hoffman wrote for the Court of Appeals, Third District, in dismissing the appeal:
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