Von Behren v. Von Behren, 868S135

• Decision Date: 30 September 1969
• Docket Number: No. 868S135,868S135
• Citation: 251 N.E.2d 35,252 Ind. 542
• Parties: Sally S. VON BEHREN, Appellant, v. William T. VON BEHREN, Appellee.
• Court: Indiana Supreme Court

Page 35

251 N.E.2d 35

252 Ind. 542

Sally S. VON BEHREN, Appellant, v. William T. VON BEHREN, Appellee.

No. 868S135.

Supreme Court of Indiana.

Sept. 30, 1969.

Hunt, Suedhoff & Wilks, Fort Wayne, for appellant.

Kennerk, Dumas, Burke & Backs, Fort Wayne, for appellee.

HUNTER, Judge.

On April 1, 1969, this court, by order and without an opinion, dismissed this appeal on a motion filed by appellee (petitioner below). Thereafter, the appellant filed a petition for rehearing, requesting a written opinion specifically dealing with the issues asserted in her appeal. We feel it to be incumbent upon this court to comply with that request insofar as it relates to our dismissal.

The facts and issues presented by the filing of the appeal by appellant and subsequent motion to dismiss by appellee are as follows: on June 17, 1968, appellee filed a petition for writ of habeas corpus; on July 5, 1968, the appellant filed a counter-claim to said petition, purportedly asserting a cause of action for support. Appellee thereafter filed a motion to strike said counter-claim which motion was granted. On July 16, 1968, the appellant filed a motion for summary judgment to which the appellee also addressed a motion to strike, which motion was sustained by the trial court. The appellant then filed a motion for new trial which was overruled.

Appellant assigns as error the overruling of her motion for new trial, the striking of appellant's counter-claim and the striking of appellant's motion for summary judgment. As already noted, we dismissed the appeal without an opinion.

In determining the propriety of such a dismissal this court must decide whether: (1) there is an appealable final judgment; (2) the rulings on the motion to strike the appellant's counter-claim and motion for summary judgment are appealable interlocutory orders. If both questions can be answered in the negative this court need go no further since appellant has no grounds on which to base an appeal. It is well settled that an appeal lies only from a final judgment, except where otherwise provided by statute, as for example a specified interlocutory order. Ind.Ann.Stat. §§ 2--3201, 2--3218, 4--214 (1968 Repl.). Lake County Trust Co. v. Indiana Port Commission (1967), 248 Ind. 362, 229 N.E.2d 457. Vinson v. Rector (1960),130 Ind.App. 606, 167 N.E.2d 601. Haag v. Haag (1959), 240 Ind. 291, 163 N.E.2d 243. Chapman v. Chapman (1953), 231 Ind. 556, 109 N.E.2d 724.

We turn first to the question of whether or not the trial court rendered a final judgment. We note that, due to this appeal, the trial court has not yet conducted any proceedings on the issue germane to this litigation, as framed by the original petition, to-wit, the custody of the children. There has been no hearing or trial. Without such a proceeding, as provided for in Ind.Ann.Stat. § 3--1917 (1968 Repl.), there could have been no final judgment. By its very definition, a final judgment would finally determine the rights of the parties to the suit on those issues raised and would leave no further questions to be adjudicated in regard to those issues. Greathouse et al. v. McKinney (1942), 220 Ind. 462, 44 N.E.2d 344. Zumpfe et al. v. Piccadilly Realty Co. et al. (1938), 214 Ind. 282, 13 N.E.2d 715, 15 N.E.2d 362, 124 A.L.R. 1060, 1068; Home Electric Light and Power Co. v. Globe Tissue Paper Co. (1896), 145 Ind. 174, 44 N.E. 191. Until there has been a determination on the custody of the children, this court can not see, by any stretch of its judicial imagination, where a final judgment has been rendered.

There having been no trial, it would also follow that the trial court did not err in overruling appellant's motion for new trial and such an assignment of error is not proper to present error on appeal. Houtchens v. Lane (1965), 246 Ind. 540, 206 N.E.2d 131. That is not to say however that a motion for new trial is an improper means for presenting alleged error in a habeas corpus proceeding where a trial has in fact been conducted. Houtchens v. Lane, supra. Turner v. O'Neal, Sheriff, etc. et al. (1957), 237 Ind. 258, 145 N.E.2d 1.

We next address ourselves to the question of whether the trial court's ruling on the motion to strike the appellant's counter-claim and motion for summary judgment are appealable interlocutory orders. An interlocutory appeal can only be taken pursuant to statutory authorization and such statutes are to be strictly construed. Haag v. Haag, supra. Vinson v. Rector, supra. The relevant Indiana statute, § 2--3218, supra, reads in pertinent part as follows:

'An appeal to the Supreme Court may be taken from an interlocutory order of any circuit, superior or probate court, or judge thereof, in the following cases: * * *

Fourth. Orders and judgments upon writs of habeas corpus made in term or in vacation.'

Exactly what orders are appealable as interlocutory orders under this statute has not as yet been determined. In fact this court, in the case of Houtchens v. Lane, supra, echoed the confusion Judge Gilkison expressed in his concurring opinion in Elder v. Dowd (1954), 233 Ind. 256, 262, 118 N.E.2d 805, 808, where he said:

'* * * it would be interesting to know what, if any, appealable interlocutory order any court or judge thereof could possibly make in any habeas corpus proceeding that might be brought.' (Our emphasis)

We are not inclined to say there are none. To do so would tend to inhibit the imagination of the trial judge in his attempt to mete justice, mindful of the rights and interests of the parties involved. This is especially true in a case, as here, where the custody and welfare of a child are involved. (See for example Rosenbarger v. Marion Cir. Ct. et al. (1958), 239 Ind. 132, 155 N.E.2d 125 where this court indicated that the trial court could retain jurisdiction in a habeas corpus proceeding by reservations in its order thereby allowing such further orders as may be required by changed circumstances to protect the welfare of the child.) We would hold however, that any rulings or orders made by the trial court which do not directly affect the immediate custody of the person in question are not of a nature as to be appealable as an interlocutory order under § 2--3218 quoted above. Such a ruling would of necessity be made during the progress of the cause and require that something be done or observed. Consequently the test, defining an appealable interlocutory order in a habeas corpus proceeding is consistent with...