York v. Miller
| Decision Date | 30 December 1975 |
| Docket Number | No. 1--974A139,1--974A139 |
| Citation | 167 Ind.App. 444,339 N.E.2d 93 |
| Court | Indiana Appellate Court |
| Parties | Charles YORK and Nettie York Toni Land Company, Inc., Defendant-Appellants, v. Elsie M. MILLER, Executrix of the Estate of Curtis Miller, Deceased, Plaintiff-Appellee. |
Forrest H. Lanning, Jeffersonville, for defendants-appellants.
Delson Cox, Jr., Salem, for plaintiff-appellee.
The defendants-appellants, Yorks, are appealing from the denial of their motion (filed pursuant to Ind.Rules of Procedure, Trial Rule 60(B) to relieve them from a default judgment and subsequent sheriff's sale of their real estate. The judgment and sale resulted from the foreclosure of a mechanic's lien held by the plaintiff-appellee, Miller. 1
Finding no reversible error, we affirm the trial court's decision.
The facts are that in early January, 1971, Miller recorded a mechanic's lien against the Yorks' real estate or construction materials furnished for their residence. A year later a foreclosure suit was commenced with the sheriff serving the Yorks. On the 29th of June, 1973, the Yorks were defaulted with judgment and a decree of foreclosure entered in Miller's favor. After notice by publication the sheriff sold the real estate at auction on the 23rd of March, 1974.
On the 14th of May, 1974, the Yorks filed for a stay of execution and the TR. 60(B) motion for relief from judgment. Both were subsequently denied. At the same time several of the York's judgment creditors petitioned to intervene and asked to be included in the distribution of the proceeds from the sale. After a series of hearings running into September of 1974, the trial court took the matter under advisement.
On July 31, 1974, the Yorks filed a motion to correct errors predicated upon the denial of their TR. 60(B) motion. The motion to correct errors was denied on the 16th of September, 1974, with this appeal resulting.
Additionally, the trial court entered judgment on the 10th of December, 1974, for the judgment creditors and ordered distribution of the sales proceeds to them as their respective interests appeared.
The Yorks' motion to correct errors and the argument presented in their brief can be divided into three general categories which attack (a) the judgment, (b) the sheriff's sale, and (c) the intervention of the judgment creditors.
TR. 60(B)(2) is the more applicable section of the rule to the Yorks' allegations asserting a claim for relief from the judgment. That section allows relief for:
'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;'
Remembering that the Yorks' TR. 60(B) motion was filed about ten months after judgment and therefore substantially late insofar as a motion to correct errors is concerned, we are of the opinion that the trial court did not err in ruling as it did. The record is bare of allegations or proof of the exercise of due diligence by the Yorks in discovering and attacking alleged errors which could have been 'any ground for a motion to correct error'. In fact, the contrary could be inferred.
A TR. 60(B) motion is not a substitute for an appeal, nor can it be used to revive an expired attempt to appeal. See: Warner v. Young America Volunteer Fire Department (1975), Ind.App., 326 N.E.2d 831 and authorities cited therein. Accordingly, we find that the Yorks' failure to bring themselves within the purview of TR. 60(B)(2) terminates those issues arising from the judgment.
Similarly, we are at a loss in understanding how the judgment of the trial court in favor of the intervening judgment creditors on the 10th of December, 1974, can be appealed by a motion to correct errors which was filed on the 31st of July, 1974, in the absence of compliance with AP. 7.2(A)(1). See: Inkoff v. Inkoff (1974), Ind.App., 306 N.E.2d 132.
Prefacing any discussion regarding the alleged errors of the sheriff's sale is the statement that this court does not weigh the evidence nor determine the credibility of the witnesses. The Yorks must make an affirmative showing that reasonable men could not have arrived at the same judgment reached by the trial court. Senst v. Bradley (1971), 150 Ind.App. 113,...
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