Lead Opinion
Jack E. Lee (Lee) appeals from the Kosciusko Circuit Court's order setting aside a partial default judgment against James R. Hawthorne and Marianne Hawthornе (Hawthornes). The sequence of events that led to this appeal is as follows: This case began as an action for a dissolution of a partnership bеtween Jack E. Lee and James R. Hawthorne. Lee's complaint was later amended to include allegations regarding a promissory note and to add Mar-anne Hawthorne as an additional defendant. On August 2, 1985, the Hawthornes failed to appear at a scheduled pre-trial conference where the triаl court struck the Hawthornes' answer and defaulted them. On that same day, Lee. obtained partial judgment by default on the portion of his complaint alleging non-payment of the promissory note. On October 7, 1985, the trial court ordered that the partial judgment of default be made a final judgment.
On November 5, 1985, the Hawthornes filed a motion to set aside the judgment of default, which motion was entitled "Motion to Correct Errors." The trial court granted the Hawthornes' motion on December 4, 1985 and аt the same time the judge disqualified himself from the case because of prior dealings with the parties. Lee on December 18, 1985 filed a Motion to Correct Errоrs which was granted by the judge, who then ordered that the December 4, 1985 grant of the Hawthornes' motion be set aside and the Hawthornes' motion be reheard by the spеcial judge newly assigned to the case.
The special judge heard argument on the Hawthornes' motion filed November 5, 1985 and, on September 9, 1986, the special Judge granted the Hawthornes' motion and set aside the partial default judgment previously entered. The record submitted on
It is because Lee filed no motion to correct errors from the September 9, 1986 ruling that this appeal must be dismissed. Despite its self-characterization as a "Motion to Correct Errors," the Haw-thornes' November 5, 1985 motion to set aside the default judgment is properly treated as a Trial Rule 60(B) motion. See, Burns v. St. Mary Medical Center (1987), Ind.App.,
Lee's December 18, 1985 motion to correct errors is not a fulfillment of the Siebert Oxidermo requirement for purposes of this appeal. Lee's Deсember 18, 1985 motion to correct errors was addressed to the original trial court judge's December 4, 1985 ruling and "was in fact granted in that the judge vacated his ruling in favor of allowing the special judge to rule on the Hawthornes' November 5, 1985 motion. The ruling at issue in this appeal is the September 9, 1986 order by the special judge granting thе Hawthornes' motion to vacate the default judgment. Since Lee failed to file a T.R. 59 motion to correct errors from that ruling as required by Siebert Oxidermo, supra, any potential error was not preserved and this appeal must be dismissed.
Appeal dismissed.
Dissenting Opinion
dissenting.
In Siebert Oxidermo, Inc. v. Shields (1983) Ind.,
In the Siebert case, and in Burns v. St. Mary Medical Center (1987) 3d Dist.Ind.App.,
"Our courts should work to make our procedural rules operate intelligently andpractically. On the other hand, they should also operate predictably and, at times, clarity and predictability outweigh other interests. That the Supreme Court might have chosen a different approach in Siebert Oxidermo is not the point. It chose a rule for uniform apрlication and clearly announced it." 504 N.E.2d at 1040 .
Accordingly, even were I disposed to do so, I could not premise a dissent upon any disagreement I might have with a particular application of the Stebert rule. Rather, I dissent because I do not believe the Site-bert rule required that Jack Lee file a Motion to Correct Errors directed to the setting aside of the judgment in question.
Although the judgment which is the focal point of this appeal was entered as a result of a default on the part of the Hawthornes, it is nevertheless a judgment entered pursuant to T.R. 54 (B).
In my view, Lee has correctly and timely perfected his appeal from the setting aside of the judgment. We should consider the merits of his argument for reinstatement of the judgment.
Notes
. TR. 59(F) provides:
"A party who is prejudiced by any modification or setting aside of a final judgment or an appealable final order following the filing of a motion to correct error may appeal that ruling without filing a motion to correct error."
. TR. 54(B) provides:
"(B) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one [1] claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delаy and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any оf the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. A judgment as to one or more but fewer than all of the claims or parties is final when the court in writing expressly determines that there is no just reason for delay, and in writing expressly directs entry of judgment, and an appeal may be taken upon this or other issues resolved by the judgment; but in other cases a judgment, decision or order as to less than all the claims and parties is not final."
Concurrence Opinion
concurring.
I agree our disposition is controlled by the Supreme Court's decision in Siebert Oxidermo v. Shields (1983), Ind.,
I therefore concur.