Wadkins v. Thornton, No. 971A187

Docket NºNo. 971A187
Citation279 N.E.2d 849, 151 Ind.App. 380
Case DateMarch 16, 1972
CourtCourt of Appeals of Indiana

Page 849

279 N.E.2d 849
151 Ind.App. 380
T. Roy WADKINS, Appellant,
v.
Jack E. THORNTON, Appellee.
No. 971A187.
Court of Appeals of Indiana, Second District.
March 16, 1972.

[151 Ind.App. 381]

Page 850

R. D. Reading, Wabash, for appellant.

Thomas J. Mattern, McCallen & Johnston, Wabash, for appellee.

BUCHANAN, Judge.

STATEMENT OF THE CASE AND FACTS--This attempted appeal resulted from the granting of summary judgment in an action to enforce a foreign judgment.

An unexpected development deters us from the usual statement of facts and issues upon which a decision might be rendered on the merits in this cause. Instead, we recite these entries by the trial court revealed by our scrutiny of the Transcript:

[151 Ind.App. 382] Tr. p. 37

December 1, 1970--The court enters summary judgment for plaintff in the sum of $9,241$.94.

Tr. p. 47

May 26, 1971--The court overrules the Motion to Correct Errors.

Tr. p. 47

August 13, 1971--The court reenters its Order of May 26, 1971, overruling the Motion to Correct Errors in these words:

'By agreement, the order over-ruling the Motion to correct errors is now re-entered as of July 1, 1971.'

(No reason or explanation is given for this entry.)

The defendant-appellant T. Roy Wadkins (Wadkins) filed a Transcript with the Clerk of the Supreme and Appellate Courts on September 29, 1971, one hundred twenty-seven days after the May 26, 1971 entry overruling the Motion to Correct Errors but within 90 days from July 1, 1971. The 90-day period subsequent to May 26, 1971 expired on August 24, 1971.

Rule AP. 3(B) requires that 'the record of the proceedings must be filed with the clerk of the Supreme and Appellate Courts within ninety (90) days from the date of the judgment or the ruling on the motion to correct errors, whichever is later.'

ISSUE--As we see it, the sole question presented is whether the trial court had power over this cause on August 13, 1971 to change the date of its entry overruling the Motion to Correct Errors from May 26, 1971 to July 1, 1971.

DECISION--It is our opinion that this appeal must be dismissed because the trial court did not have power subsequent [151 Ind.App. 383] to overruling the Motion to Correct Errors to change the date of that action to a later date without good cause.

A similar situation was considered in McIntosh v. Monroe, (1953), 232 Ind. 60, 111 N.E.2d 658. In McIntosh, by consent of all the parties, the trial court's overruling of the appellant's motion for a new trial was reinstated and again overruled in order to grant the appellant an additional 90 days within which to perfect his appeal. In reviewing the trial court's action, our Supreme Court had this to say:

'* * * the trial court was without jurisdiction on January 2nd, 1952, even with the consent of the parties to set aside its action in overruling the motion for new trial on April 3, 1951, to reinstate the judgment and again overrule the motion for new trial, and to grant defendant ninety days time within which to perfect his appeal. This action by the trial court is null and void.' (Emphasis supplied.)

We recognize that before terms of court were abolished, it was the general rule that 'a court has full and complete control of the record of its proceedings during the term at which the proceedings are had, and during such term, for good cause, may correct, modify, or vacate any of its judgments or orders made therein.' (Emphasis supplied.) State ex rel. Neal v. Superior Court of Marion County, Room 2 et al., (1930) 202 Ind. 456, 174 N.E. 732. See

Page 851

also Hoffman v. Hoffman, (1944) 115 Ind.App. 277, 57 N.E.2d 591 (attempt to modify a judgment after the cause was venued to another county for further proceedings); In Re Decker's Estate, (1951) 122 Ind.App. 390, 102 N.E.2d 920 (motion to vacate and correct an order approving an administrator's final report). We also are aware that the reentry in McIntosh occurred during a subsequent term of the trial court and was therefore void since the jurisdiction of trial courts over causes of action ceased with the expiration of the term in which the final judgment was rendered. The court was thus [151 Ind.App. 384] powerless in a new term to correct or amend judgments rendered in a previous term. Wagner v. McFadden, (1940) 218 Ind. 400, 31 N.E.2d 628; Scheiring v. Baker, (1931) 202 Ind. 678, 177 N.E. 866.

This state of affairs was changed in 1967, when the distinction between term time and vacation time in all courts of the state of Indiana was abolished by the enactment of IC 1971 33--1--6--1, Ind.Ann.Stat. § 4--6310 (Burns 1968). This statute extended the term for all courts to the...

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24 practice notes
  • Russell v. State, No. 2-481A114
    • United States
    • Indiana Court of Appeals of Indiana
    • December 8, 1981
    ...conform to the truth. State ex rel. Jackson v. Owen Circuit Court, (1974) 160 Ind.App. 685, 314 N.E.2d 73; Wadkins v. Thornton, (1972) 151 Ind.App. 380, 279 N.E.2d Although a writing to evidence a change in the record is required after the "term" time, it has historically not been a require......
  • Arsenal Sav. Ass'n v. Westfield Lighting Co., Inc., No. 4-1083A349
    • United States
    • November 26, 1984
    ...without jurisdiction to act. See generally Clouser v. Mock, (1959) 239 Ind. 143, 155 N.E.2d 745 (term time); Wadkins v. Thornton, (1972) 151 Ind.App. 380, 279 N.E.2d We are cognizant that, as pointed out by Arsenal, exceptions to this principle can be made by nunc pro tunc entry as recogniz......
  • Kelly v. Bank of Reynolds, No. 2--1274A295
    • United States
    • Indiana Court of Appeals of Indiana
    • December 16, 1976
    ...143, 155 N.E.2d 745; Indianapolis Life Ins. Co. v. Lundquist (1944), 222 Ind. 359, 53 N.E.2d 338; Wadkins v. Thornton (2d Dist. 1972), 151 Ind.App. 380, 279 N.E.2d 849; King v. King (1948), 119 Ind.App. 46, 82 N.E.2d 527. Before the current rules of trial procedure became effective on Janua......
  • Wireman v. Wireman, No. 2--1073A220
    • United States
    • Indiana Court of Appeals of Indiana
    • March 4, 1976
    ...(2d Dist. 1974), Ind.App., 310 N.E.2d 877, rev'd. on other grounds (1975), Ind., 330 N.E.2d 92; Wadkins v. Thornton (2d Dist. 1972), 151 Ind.App. 380, 279 N.E.2d 849. There was no denial of due process by amendment of the B. The Trial court Did Not Abuse Its Discretion in Amending the Judgm......
  • Request a trial to view additional results
24 cases
  • Russell v. State, No. 2-481A114
    • United States
    • Indiana Court of Appeals of Indiana
    • December 8, 1981
    ...conform to the truth. State ex rel. Jackson v. Owen Circuit Court, (1974) 160 Ind.App. 685, 314 N.E.2d 73; Wadkins v. Thornton, (1972) 151 Ind.App. 380, 279 N.E.2d Although a writing to evidence a change in the record is required after the "term" time, it has historically not been a require......
  • Arsenal Sav. Ass'n v. Westfield Lighting Co., Inc., No. 4-1083A349
    • United States
    • November 26, 1984
    ...without jurisdiction to act. See generally Clouser v. Mock, (1959) 239 Ind. 143, 155 N.E.2d 745 (term time); Wadkins v. Thornton, (1972) 151 Ind.App. 380, 279 N.E.2d We are cognizant that, as pointed out by Arsenal, exceptions to this principle can be made by nunc pro tunc entry as recogniz......
  • Kelly v. Bank of Reynolds, No. 2--1274A295
    • United States
    • Indiana Court of Appeals of Indiana
    • December 16, 1976
    ...143, 155 N.E.2d 745; Indianapolis Life Ins. Co. v. Lundquist (1944), 222 Ind. 359, 53 N.E.2d 338; Wadkins v. Thornton (2d Dist. 1972), 151 Ind.App. 380, 279 N.E.2d 849; King v. King (1948), 119 Ind.App. 46, 82 N.E.2d 527. Before the current rules of trial procedure became effective on Janua......
  • Wireman v. Wireman, No. 2--1073A220
    • United States
    • Indiana Court of Appeals of Indiana
    • March 4, 1976
    ...(2d Dist. 1974), Ind.App., 310 N.E.2d 877, rev'd. on other grounds (1975), Ind., 330 N.E.2d 92; Wadkins v. Thornton (2d Dist. 1972), 151 Ind.App. 380, 279 N.E.2d 849. There was no denial of due process by amendment of the B. The Trial court Did Not Abuse Its Discretion in Amending the Judgm......
  • Request a trial to view additional results

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