Warner v. Young America Volunteer Fire Dept.

Citation326 N.E.2d 831,164 Ind.App. 140
Decision Date07 May 1975
Docket NumberNo. 2--874A194,2--874A194
PartiesDonald WARNER, Appellant, v. The YOUNG AMERICA VOLUNTEER FIRE DEPARTMENT, Appellee.
CourtIndiana Appellate Court
Robert S. Justice & Robert L. Justice, Logansport, for appellant

John R. Hillis, Logansport, for appellee.

ON THE APPELLEE'S MOTION TO DISMISS APPEAL OR AFFIRM JUDGMENT

PER CURIAM.

This cause is pending before us on the Appellee's Motion To Dismiss the Appeal or Affirm Judgment, which alleges numerous defects in the record of the proceedings and the appellant's brief. After having examined appellee's motion, the record of the proceedings and the appellant's brief, we conclude that appellant has failed to preserve any issues for appeal. Accordingly, we affirm.

WERE ANY ISSUES PRESERVED FOR APPEAL?

This was a cause of action for ejectment and immediate possession of real estate by the plaintiff-appellee against the defendant-appellant. The record of the proceedings discloses the following sequence of events:

7--27--73: Judgment entered for plaintiff

9--25--73: Motion to Correct Errors filed by defendant

10--16--73: Motion to Correct Errors overruled

11--7--73: Praecipe filed.

No appeal was perfected from the overruling of this original Motion to Correct Errors. Some five months later, defendant [164 Ind.App. 143] filed in the trial court a motion for relief from judgment pursuant to Rule TR. 60. The sequence of events following the filing of this motion was as follows:

3--4--74: Motion for Relief from Judgment filed by defendant

3--4--74: Motion overruled.

5--3--74: Motion to Correct Errors filed

5--6--74: Motion to Correct Errors overruled

6--4--74: Praecipe filed

8--5--74: Appeal perfected in the Court of Appeals by filing the record of the proceedings.

We have carefully examined the lengthy original Motion to Correct Errors and have compared it to the equally lengthy Motion for Relief from Judgment. We find that most of the allegations in the Motion for Relief from Judgment are exactly the same as those in the original Motion to Correct Errors. There are four new points raised in the Motion for Relief from Judgment. Those four points are:

1. The judgment is void;

2. It is not equitable that the said judgment should have prospective application;

3. Young America Volunteer Fire Department, Inc., was without power to bring this action in which said judgment was given in the name of Young America Volunteer Fire Department and not in the corporate name of the non-profit Indiana corporation designated Young America Volunteer Fire Department, Inc.

4. The prosecution of the action in which the said judgment was given was contrary to Indiana Trial Rule 17, Sec. (A) providing that every action shall be prosecuted in the name of the real party in interest, and Section (B) thereof requiring that a party's capacity to sue be determined by the law of the state. The said judgment is also contrary to Indiana Trial Rule 19 providing in Section (A) that all persons who are subject to the service of process must be joined as a party to an action if in their absence complete relief cannot be accorded among those already parties or if the said party claims an interest relating to the subject matter of the action.

In view of the fact that most of the allegations contained in the original Motion to Correct Errors were repeated in the [164 Ind.App. 144] Motion for Relief from Judgment, we must first determine whether appellant has waived those allegations by not perfecting an appeal from the denial of the original

Motion to Correct Errors. We must next determine if appellant waived the new points contained in his Motion for Relief from Judgment set out above and numbered 2, 3 and 4, by not incorporating them in his original Motion to Correct Errors

Under our former practice it was held that an action under the statute providing for review of judgments (Ind.Ann.Stat. § 2--2604 (Burns 1968 Repl.)) was a substitute for an appeal, 1 and therefore an alternative remedy to an appeal. 2 This statute and others which provided relief from judgments are now superseded by our present rule TR. 60. 3 Rule TR. 60 permits an attack on a judgment by motion, and an appeal following the ruling on the motion. However, the relief afforded by Section B of this rule is not a substitute for a timely appeal. Our research does not disclose an Indiana case so holding, but the language of the rule itself indicates such an intention. Subsection (2) of Section (B) provides:

'(2) any ground for a motion to correct error, including without limitation newly discovered evidence, which by due diligence could not have been discovered in time to move for a motion to correct errors under Rule 59,' (Our emphasis)

Dean Harvey also points out that the right to raise errors which could be raised by a motion to correct errors is [164 Ind.App. 145] limited to errors which could not have been discovered in time for a motion to correct errors under Rule 59. 4

Appellant Warner did not allege any facts in his Motion for Relief from Judgment which would entitle him to relief under TR. 60(B) subsections (1), (3), (4), or (5). Because he did not allege that the four new allegations of his Motion for Relief from Judgment could not have been discovered in time to move for a motion to correct errors under Rule 59, he cannot obtain relief under subsection (2). This leaves for our consideration subsections (6) (judgment is void), that part of subsection (7) which reads 'it is no longer equitable that the judgment should have prospective application,' and subsection (8) (any other reason justifying relief from the operation of the judgment).

Clause (6) of the federal rule 60(b) is the same as subsection (8) of Indiana TR. 60(B). The federal courts have held that relief under Rule 60(b)(6) is not a substitute for an appeal. In Wright and Miller, Federal Practice and Procedure, Vol. 11, § 2864, pp. 214 and 215, the authors state:

'The broad power granted by clause (6) is not for the purpose of relieving a party from free, calculated, and deliberate choices he has made. A party remains under a duty to take legal steps to protect his own interests. In particular, it ordinarily is not permissible to use his motion to remedy a failure to take an appeal. However, this is not an inflexible rule and in unusual cases a party who has not taken an appeal may obtain relief on motion.' (Our emphasis)

There are numerous federal decisions interpreting federal Rule 60(b)(6). The

common thread running through these decisions is that Rule 60(b)(6) affords a means for extraordinary relief, to be granted at the discretion of the court only upon a showing of exceptional circumstances, and that the remedy thus afforded is not a substitute for an appeal, nor can it be used to revive the right to an appeal after the time for appeal has expired

[164 Ind.App. 146] See: Expeditions Unlim. Aquatic Ent., Inc. v. Smithsonian Inst., 163 U.S.App.D.C. 140, 500 F.2d 808, 809 (1974); Horace v. St. Louis Southwestern Railroad Company, 8 Cir., 489 F.2d 632, 633 (1974); Lubben v. Selective Service System Local Bd. No. 27, 1 Cir., 453 F.2d 645, 651 (1972); Martella v. Marine Cooks and Stewards Union, Seafarers, Int'l Union of North America, AFL-CIO, 9 Cir., 448 F.2d 729 (1971); Demers v. Brown, 1 Cir., 343 F.2d 427 (1965); Swam v. United States, 7 Cir., 327 F.2d 431 (1964); Wagner v. United States, 2 Cir., 316 F.2d 871 (1963); Flett v. W. A. Alexander & Company, 7 Cir., 302 F.2d 321 (1962); Morse-Starrett Products Co. v. Steccone, 9 Cir., 205 F.2d 244 (1953).

This sampling of cases covering the span of twenty-two years clearly shows that the intent of the federal courts as expressed in the cases interpreting their Rule 60(b) is, that if one intends to appeal a judgment, he must do so within the time allowed. One cannot sit idly by and let the time for appeal elapse, thereafter file a 60(b) motion and thereby revive his expired remedy of appeal. This is reasonable and logical, and we believe we should so interpret our Rule TR. 60(B).

Having arrived at this point, we again examine the appellant's Motion for Relief from Judgment, and we hold that all of those allegations of that motion which are duplications of the allegations contained in the original Motion to Correct Errors are waived because of appellant's failure to perfect his appeal from the denial of the original Motion to Correct Errors.

Turning now to the allegations of the Motion for Relief from Judgment that were not contained in the original Motion to Correct Errors, plaintiff-appellant first alleges that the judgment is void. The Motion is not accompanied by any memorandum explaining why the judgment is thought to be void. A judgment void on its face can be attacked any time, either collaterally or directly. Brindle v. Anglin (1973), Ind.App., 295 N.E.2d 860; Michigan Mutual Liability Co. v. Perez (1965), 137 Ind.App. 247, 207 N.E.2d 368.

[164 IND.APP. 147] I. IS THE JUDGMENT VOID?

There are in general three jurisdictional elements in every valid judgment, namely, jurisdiction of the subject matter, jurisdiction of the person, and the power or authority to render the particular judgment. 1 Freeman, Judgments (5th Ed.) § 226, pp. 444, 445.

As earlier stated, plaintiff's action was for ejectment and immediate possession of certain real estate situated in Cass County, Indiana, and was filed in the Cass Circuit Court, which is a court of general jurisdiction. The record shows summons was issued directed to the defendant Warner, and the sheriff's return on the summons shows the defendant was served with process by reading the same to him and leaving a copy with him. On October 9, 1969, defendant's attorney entered a general appearance for him.

The following excerpt from appellant's statement of the issues in his appellant's Brief in this appeal, gives the first clue as to why the judgment is thought to be void:

'Whether a...

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