*1 (Burns Ed.), unperfected Code which renders an rights secured creditor subordinate of one knowledge who “becomes a lien creditor without * * security: perfected; interest it If and before security Wayne Ralston Purina had taken a Det interest right proceeds wiler’s contract stock sale but financing had failed file a statement and the unsecured against creditor former wife had property executed procured judicial so thereon, prior lien she would have had a right knowledge security absent of the See, interest. Levine (1968), App. Pascal 2d 94 Ill. 425. v.
Ralston Purina security by appropriate its did interest filing purported statutory and Evanelle Detwiler’s pur lien suant alimony judgment to her execution lapsed had general personalty as to and never exist as to did the stock. Therefore, right Company’s Purina Ralston to the stock sale (cid:127)proceeds superior to that of Evanelle Detwiler.
Accordingly of the trial court must be re- versed.
Judgment reversed.
Garrard, concurs; J., C.J., participating Robertson, designation, concurs. Reported at 364 N.E.2d
Note. — Mary Irmiger Irmiger. K. B.
Donald v. July Filed 2-975A259. [No. 1977.] *2 Indianapolis, Adams, Commons, L. Adams & of Donald appellant. for Indianapolis, Petit, Caldwell, Petit, of
Maurice R. Jones & appellee. for THE OF CASE
STATEMENT to this office J. This case was transferred Lowdermilk, help the dis- District order to eliminate Second among parity in caseloads the Districts. respondent- appeal from of
This is an the trial court’s denial Irmiger’s judg- appellant for from K. relief Donald ment.
FACTS Mary Irmiger petition Petitioner-appellee a with B. filed marriage re- the dissolution of her trial court the Irmiger (Donald). spondent-appellant The court Donald K. 10, day the set the date for trial. of December as On present. attorney In Donald’s trial neither Donald nor his was proceeded pre- Evidence absence court with the trial. was by judgment dissolving marriage Mary, and a sented interests, marriage adjudicating parties’ respective was rendered. January 22, 1975
On Donald filed motion to correct errors Procedure, pursuant supported Ind. Rules of affidavits That on Rule 59. motion was overruled court Trial February 5,1975. February 26,
On 1975 Donald filed a motion for relief judgment supported by pursuant affidavits to Ind. Rules 60(D). Procedure, Trial trial court 60(B) Rule The 6,1975. overruled on this motion June
On June another motion to correct Donald filed overruling errors. This motion was at the court’s directed judgment. Donald’s motion for court overruled second motion to correct errors on June praecipe transcript Donald filed his for the July 24, transcript 1975. The with this court on filed September 29,1975.
ISSUES presented Donald has two issues to this court for review. Mary contends that because Donald failed to errors, from his motion to correct he has waived all of the of error which he raised or *3 original could have raised in that motion. that She contends properly preserved because by no issues have been for review appeal this agree. court this must be dismissed. We AND
DISCUSSION DECISION jurisdictional question The which has been in raised this appeal is almost identical to that which was before this court Young in Dept. Warner v. America Volunteer Fire (1975), App. 140, 831; 164 procedural Ind. 326 steps the in page taken that case were summarized on 833 as follows: proceedings “. . . record of the following discloses the sequence of events: Judgment plaintiff 7-27-73: entered for by 9-25-73: Motion to Correct Errors filed defendant 10-16-73: Motion to Correct Errors overruled Praecipe filed. 11-7-73: appeal perfected overruling was original No of this later, Motion to Correct Errors. Some five months defend- the judgment ant filed in trial court a motion for relief from following sequence of events pursuant 60. The to Rule TR. filing was as follows: of this motion
the Judgment by de- filed from for Relief Motion 3-4-75: fendant 3-4-75: Motion overruled 5-3-75: 5-6-75: filed Errors Motion to Correct overruled Errors Motion to Correct Praecipe filed 6-4-75: Appeals of perfected in Appeal the Court 8-5-75: proceedings.” filing the record of the Warner, court in consulting cases the several federal After supra, page 835 stated: covering span twenty- sampling of cases the of “This clearly years shows that the intent of federal courts two as interpreting is, expressed 60(b) their Rule the cases judgment, appeal a he must so
that if one intends to do idly by cannot the time allowed. One sit and let within the appeal elapse, (b) file a 60 motion time thereafter remedy thereby expired appeal. his of This is and revive logical, interpret should we believe we so reasonable and our 60(B). Rule TR. again Having point, at we examine the arrived Judgment, from and we hold appellant’s Motion for Relief dupli- that motion which are all those of of original allegations contained in the Motion cations of appellant’s waived failure are because of Errors to Correct Motion perfect from the deniel his Correct Errors.” failed to his at bar Donald In the case by filing transcript days filing praecipe within his days proceedings trial court’s within of the ruling original motion correct errors. on his His judgment subsequent motion for relief was preserving which could those issues were or ineffective original motion in his to correct errors raised have been attempt such because *4 after time part revive certain issues on Donald’s only trial court’s appeal, the means which the perfect his time, rulings could have been reviewed at that issues on those passed. had
Donald contends that trial court’s denial of his motion judgment judgment for relief from was a final to which a motion to correct errors can be addressed from which an appeal can It be taken. is correct that the of a denial motion judgment judgment for relief from is a final from which an allegations- can be taken.1 where error raised in that motion have been could or have been previous in a raised motion to correct errors2 or have been previous in judgment,3 raised motion for relief from then alleged those errors are waived and appeal. cannot be Donald admits that he raised no new of error judgment. motion for his But he asserts that allegation attorney his that he and his were victims of sur- prise guilty neglect properly excusable was not and/or includable in his motion to correct errors. He contends that surprise neglect among and excusable are not the reasons in TR. 59 for enumerated which relief under that rule can granted. agree. do not be We 59(A) (9) provision a “catch all” is
TR. which in- would grounds clude the which Donald asserted in his motion for judgment. 59(A) (9) provides: relief from TR. . . . enter “The Court shall an order for the correction , ., including following: . . .
of errors . the any . For reason (9) “. . allowed rules, these statute (Our emphasis) or other law.” Therefore, any error, for which a can be vacated or modified under TR. properly in in a cludable motion to correct errors. that
For the reason Donald failed to errors, his correct each error which he raised or could have raised waived, motion was any he to assert new because failed errors in his motion for Hooker, Corporation (1974), v. Terre Haute App. Gas 1. See 162 Ind. Warner, supra. 2. See Hooker, supra. 3. See *5 for review preserved judgment, no error has been relief court. Appeal dismissed. J., participating des-
Robertson, concurs; Garrard, C.J., ignation, opinion. concurs with Opinion
Concurring potential discloses another of the case J. This Garrard, existing Indiana Rules in the outer reaches of quandaries overlaps, potential Procedure, 59 and 60 where Trial Rules commencing requirement appeal, and the the time ruling TR. 60 motion follow the on a a TR. 59 motion any difficult procedural pitfalls that counsel will find create to avoid. proceeding the however, that in this dilemma agree,
I
subsequently
certainty.
for the relief
The basis
with
solved
60(B) motion was identical
to the
the TR.
requested under
original
requested in
No
TR. motion.
basis
TR. 59
taken
denial
by the
appellant is bound
“waiver” thus effected
motion.
attempt
relitigate
correctly precluded from his
and was
Young
through
60(B). See, Warner v.
America
TR.
error
App. 140,
Dept. (1975), 164 Ind.
Kevin State July 12, 1977.] Filed 2-376A107. [No.