*1 Gladys H. Davis M. James Davis. January 31, Rehearing 2-1172A115. Filed 1974. denied March
[No. May 23,1974.] Transfer denied Price, Bingham, Spilman, of Summers, P. & John Welsh George Indianapolis, Carroll, Cottrell, Thomas Carroll J. A. Cottrell, Indianapolis, appellant. & for Shotwell, Claycombe, Cracraft, Kothe,
Robert A. Steven G. Claycombe, Indianapolis, Kortepeter, Hendrickson & appellee. Summary
Case (James) Plaintiff-Appellant James Davis Buchanan, J. attempts from an amended a divorce adjusting previously property decreed action Defendant-Appellee Gladys parties favorably Davis (Gladys) first filed a motion to to the amended dismiss the
We
CASE HISTORY Gladys 23, 1973, filed in this court a March On ground Affirm on the James Dismiss or following entry file failed (being judgment by the trial court the court’s Second By opinion handed Judgment). Per down Curiam Amended Gladys’s Motion. improvidently overruled May 10, 1973, we App. Davis FACTS judgment favorable to evidence most The facts and the trial court are: Complaint for Divorce 20, 1971, April
On *2 Coun- an Answer and against responded with Gladys and she Board, amended later Separation Bed and terclaim for divorce. to seek absolute 22, 1971. On the on December
The matter tried divorce January entered a Decree was property and ordering certain Gladys distribution of to parties by (real estate) the family owned residence of sale the proceeds the sale entireties, net of by the with the tenants them. equally be divided between Gladys Errors 13, 1972, filed Motion Correct March
On determining distribution alleging that the trial court rights neglected pension certain property consider had $100,000. belonging approximate value of to James granted Gladys’s Motion to Correct The trial court recognizing pension judgment an amended and entered awarding taken consideration and into not estate, increased ownership the real her sole by approximately $5,500. by property received her his errors on filed a motion to correct time James at no questioning appeal directly behalf, but instead this own judgment. propriety the amended ISSUE improperly considered issues as to evidence James raises awarding the by abuse of discretion trial court and However, judgment. Gladys in the amended real estate appear, must hereinafter this reasons which will overruling of our action disposed reconsideration issue, then, is: Aifirm. Gladys’s to Dismiss Motion (James) if Must be dismissed timely following entry fails to file a motion to correct of an taken? amended Affirm, Gladys In her Dismiss or Motion to contended that response entered court in the trial her Correct Errors constituted new requiring James, 59(G), ment under Rule TR. file own his motion the trial court a condition with taking argued (A) response, Appellate that under Rule Gladys’s appeal from he free to subsequent following entry filing a his own the amended DECISION opinion our that this CONCLUSION —It because James failed to file a motion to correct dismissed following entry (a final *3 by required judgment) 4(A). Rule AP. To the extent as Per Curiam decision in v. Davis that our 837, herewith, conflicts it is overruled. by perplexing presented in issue is rooted requires apparent conflict between Rule TR.
an filing appeal the to as a condition of a motion separately specify” which “shall errors errors the correct appeal, 4(A), raised on and Rule AP. issues party arguably dispenses with this a granting opponent’s aggrieved by the of his cor- argument 4(A) under Rule AP. This latter is rect errors. the Rule upon sentence in which reads: one founded granting denying trial court ruling the “A or order or shall a final be deemed may taken therefrom.” ment, an decision, mistakenly fixed previous Per Curiam In our granting simple denying solely upon the our attention judgment final errors as to correct a a motion of judgment following regard amended the existence Gladys’s Empha- Correct Errors. the sizing speedy appeals, determination we said: need justice goals system a primary “One of the litigants’ rights. speedy think the determination of the We given Supreme that a trial intended court should Court errors, any. However, once opportunity to correct its if ag given opportunity, that
the court has been ruling grieved by should the immediate the court’s ruling. right believe the intent the court’s We 4(A) just expressed Supreme in Rule Court logical plainly says, extension rule that what subsequent motion to correct construction that required is not party’s errors.” opposing motion to correct Davis, supra supplied.) Davis v. at words, fateful a unani days after we uttered those Eleven Deprez (1973), 260 Supreme decided State mous similar circumstances which under that an attention on crucial amended focused its required judgment and therefore became errors to be filed to the errors motion to correct addressed such new that the The facts were State as following the Errors trial dis- to Correct court’s simple judgment entry. action missal of its condemnation Motion, response the trial court thereafter State’s and, addition, to Correct denied the Motion by making Special of dismissal certain Findings Fact and Conclusions of Law accordance with 52(B) 59(E). appealed TR. and TR. then Rules The State first Court without filed a second motion entry. errors directed to the to correct *4 of this fatal omission dismissed. Because analyzed problem: Arterburn Justice Chief “First, question this there is instance of what referred Rule AP. constituted The net entry with . . was dismissal effect . [first]
prejudice, the Motion to Correct Errors filed. final, have been not been for would had it If the trial court ... granted simply either or denied that Motion to Correct step Errors such would constituted the have been taken from which this could Rule AP. 4. further ado. “However, completely . the trial court entered a new . . judg- constituting findings entry . . of fact and . new a new 59(E). TR. new further Rule This ment as authorized time set forth the reasons entry for the first dismissal upon the trial court’s was based. which
law If error, Motion to Correct Errors toas they clearly then were in entry necessary. Thus, the . . became the . \new~\ re- judgment, Errors, to which a Correct final ferred U, should have been AP. in Rule filed. Personnel at 124. entry directed to [674] “Second, 1971).” Board the . there which no . . [new] Wilson, been supplied.) entry, has no Motion to that N.E.2d 448 State v. entry taken. Indiana has become [256] supra interpreted 4(A) has Rule Thus, AP. grants or denies a if a trial mean that accompanied by entry or which is new consisting findings, amendments, other of additional ment aggrieved thereby judgment, alterations entry to the correct errors addressed new file motion to the final has become which only interpretation agree, not we because this taken.1 With logically so, but because it stresses the need to do are bound alleged appeal process. in the specificity of referring 4(A) appeals AP. “from sentence Rule first judgments,” sentence as well the second denominat- all final ruling judgment, ing a motion to correct errors a final given force and effect. is thus Deprez case,
Comparing plain it with this that the initial simple than a followed more decree was or denial imply We construe additional motion to computing- correct errors serves as the basis for the time intervals within 2(A) initiate submit an See Rules AP. 3(B).
295 Gladys’s Motion, errors. motion correct findings court entered additional the trial adjustment prop resulting in of the a substantial parties. “became erty This amended Errors, judgment, final to which a 4, filed.” v. State referred to in Eule should supra at 124. Appellant never Furthermore, Deprez, James as unlike to either the initial or filed a motion to correct errors judgment. could not made aware So court alleged appeal. trial was errors asserted The alleged errors opportunity to these never afforded the correct prior judgment. is this associated with its amendment of the It purpose opportunity paramount correct error underlying Board trial Personnel Wilson
in the Indiana State v. court. Spann (1973), 448; (1971), 674, Moore v. 256 271 N.E.2d Ind. (rehearing denied, 302 Ind. 298 490 156 N.E.2d 825). N.E.2d document;
The motion to correct errors is sacred it v. appellate keystone the arch “the review.” Moore Bradburn v. supra. County Dept. Spann, Public Welfare (1971), App. 805; 387, 148 Indiana 266 N.E.2d State v. Diggs (1971), Personnel Board 257 272 N.E.2d 535; 868; Gray (1971), 256 Ind. v. State v. Centerville Lashley App. 155 Ind. N.E.2d Board v. supra. 519; Wilson, Indiana Personnel State Deprez principle foreseeable extension of the is a any judgment, to correct errors must filed to v. including Personnel an Indiana State Board amended one. supra; Wilson, Spann, County supra; and Bradburn Moore supra, Dept. Welfare, latter Public case said: appealing any . . the in an ..“. the trial court motion file in sup- appeal.” condition as a plied.) at 806. Because “there confusion proper as to the method taking of a Motion to Correct Errors,” James asserts that if we consider the case binding give precedent, we should not retroactive effect dismissing our decision dis- Deprez. missed in not, obliged
Harsh we are do so because position is in an Appellant- even weaker than the Deprez. us to For otherwise do than follow the lead *6 judges highest put state’s tribunal in would us position unhappy attempting trump their ace. Accordingly, Appellee’s (Gladys) Rehearing Petition May 22, 1973 is overruled and this is dismissed. J., White, concurs; Sullivan, P.J., separate concurs with opinion.
Concurring Opinion Supreme P.J. Prior to the on Court’s decision Sullivan, May 21, Deprez (1973), 1973 State 296 260 v. gave N.E.2d this court detailed consideration contentions herein treated and determined additional required. Motion to Correct Error was not compels Such practicing me to the conclusion that the members of the bar reasonably, rationally justifiably have could concluded likewise. appeals in requisite
To dismiss time for expired Motion Error supra, greater degree to hold members of the bar a far wisdom, foresight clairvoyance, if not my than col- leagues myself denying appellee’s exhibited May appellate Many may 1973. horses Dismiss escaped opportunity their a reasonable without owners barn door. to lock the
However, now that
the Rules have been construed and
applied
retrospective
in a
by our
definitive and
decision, aggrieved
procedural
parties must be held to that
requirement
could
even in cases
which such
anticipated.
reasonably
not have been
holding
well
only by
not
but as
We are bound
retrospective application.
therefore concur
I must
majority
Such
decision of the
dismiss
given
however,
with the view that
dismissal
concurrence
right
plaintiff-appellant
prejudice
to the
petition
perfect
appeal. See
for leave to
a belated
concurring
Handling
opinion in Means
Material
Co.
Seif
at
Note. — Hays Hays Gas, v. Hartfield L-P Carl Florence C. C. Hartfield, Oscar Jr. and Hartfield. Una January 31, 1-473A62. Filed 1974.] [No.