Common v. Kahlenbeck, 421 N.E.2d 421

Common v. Kahlenbeck

421 N.E.2d 421 | Ind. Ct. App. | 1981

Dissenting Opinion

SULLIVAN, Judge,

dissenting.

I dissent and would grant rehearing for the reasons set forth in my dissenting opinion in Brendonwood Common v. Kahlenbeck, (2d Dist. 1981) Ind.App., 416 N.E.2d 1335.

The majority opinion upon rehearing merely emphasizes the absence of rationality in the requirement for constant surveillance of court records by counsel. Whether the affidavit or Mr. Beckman would constitute a basis for reversal of the denial of T.R. 60 relief is not of particular signifi-*422canee at this stage. The affidavit, however, does demonstrate that an attorney, diligent to a fault, who would have cheeked the records of Marion Superior Court, Division 3 every day from the date of trial, February 22, 1979, to and including May 11, 1979, would not have discovered the entry of judgment. It would appear therefore that no matter how diligent, an attorney in this case would not have discovered the entry of judgment until after the time had expired for the filing of a Motion to Correct Errors.

Lead Opinion

ON PETITION FOR REHEARING

SHIELDS, Judge.

Brendonwood Common petitions this court to rehear an appeal which affirmed the trial court’s denial of an Indiana Rules of Procedure, Trial Rule 60 motion for relief from judgment.

Brendonwood, because it did not receive notice of entry of judgment until after the time allowed for filing a motion to correct errors, filed a T.R. 60 motion for relief from judgment which was denied.

In affirming this denial, we held: “Bren-donwood did not allege, nor did it show, that it exercised due diligence in ascertaining the status of the case.... [AJbsent a showing of diligence ..., we cannot say the trial court clearly abused its discretion in denying the motion for relief from judgment.” Brendonwood Common v. Kahlenbeck, (1981) Ind.App., 416 N.E.2d 1335 at 1337.

In its petition for rehearing Brendonwood complains that we failed to consider the affidavit of William C. Beckman which was filed with this court. The affidavit stated that Beckman checked the docket sheet on May 11,1979 and the judgment had not yet been entered.

In reviewing the decision of the trial court we consider the record compiled in the trial court. We do not consider evidence presented for the first time on appeal.1

Petition for Rehearing denied.

BUCHANAN, C. J., concurs. SULLIVAN, J., dissents, with opinion.

. The amount of diligence alleged in the affidavit is questionable. It alleges the docket sheet was checked on May 11, 1979, months after the Feb. 22, 1979 trial, and, interestingly, the same day notice of the judgment entry was received.

Also, necessarily the affidavit does not and cannot set forth any facts which in any way lend themselves to a claim that Brendonwood was misled by the absence of an entry on May 11, the day it checked.