*1 Rоdney Logal Billy A. Jerry v. William C. W. Cook, Cruse,
D. Czekaj Martin, Randall J. Mahan. and William 8,1975.] 3-675A106. December
[No. Filed Muenich, Michael L. Muenich, Hammond, Hand and of for appellant. Custer, Stults,
Dale Custer, E. Kutansky McClean, & Gary, aрpellee Billy Martin, for Hughes, Larry D. Karen L. Evans, Chester, Clifford, Hoeppner G. Houran, Valpa- & raiso, appellee Cruse, for Rudy Lozano, William C. Sam J. Bernadi, Spangler, Jennings, Spangler Gary, Dougherty, & appellee Czekaj, for Galvin, Jr., Randall Frank Edmond J. Leeney, Hammond,, Jerry appellee W. Cook. Defendants-appellees Cruse, Billy Williаm C.
Hoffman, J. — Czekaj D. Martin and separate Randall have motions filed appeal, alleging to dismiss this that the trial court with- was judgment. out Plaintiff-appellant to enter a Rоdney Logal responded A. has not such to motions.
The record of this cause discloses on November Superior the Porter Court dismissed an action between pаrties plaintiff Logal’s these for the comply failure to with previously certain sanctions ordered such court. An perfected presently was from that and is pending in as this court Cause No. 3-773A120. perfected
After court, Logal such was to this ob- tained new counsel who filed in the trial court a “Petition pursuant Reinstate” such action Procedure, Rules Logal then was denied. petition 60(B). Such Trial the denial of directed a motion correct errors present wás overruled petition. This motion perfeсted. was
Appellees that after the first contend *2 court, proceedings the filing in this by record the of the the cause, and general jurisdiction over the lost trial court its Logal’s Rein- to jurisdiction “Petition hád no to entertain long supportive precedential case law is line of state.” position. this 449, 451, (1903), N.E. Ind. at 68 In v. 161 Wait
. Westfall
1010,
1009,
Supreme
at
our
stated:
Court
by
thoroughly
“It
settled
the decisions of
sеems
be
judgment
appeal
American courts that an
from a final
the
cause,
generally upon
prop
in a
when
rendered
the issues
the
erly perfected,
finаl
trial court
embraced
carries
whole case
within
the
absolutely
jurisdiction
adjudication
the
of the
from
Proc.,
Elliott,
appellate
App.
tribunal.
the
Ency.
tersеly
2
stated in the text of
PI.
541.
rule is
§
Pr., 327,
perfected,
'Where an
has been
thus:
&
the
matter and
subject-
jurisdiction
appellate court
of the
over the
attaches,
partiеs
no
and the trial
court
affecting
rights
any
power
further decision
the
to render
Citing
it is
parties in the cause until
remanded.’
of the
State,
Kolsem,
many
rel.
Ind.
In
ex
v.
130
authorities.
following language:
566,
the
435,
court used
L.R.A.
this
14
appeal,
perfected
appellees had
their
there could
‘If the
doubt,
entirely
been
case would have
removed
thе
no
from the
jurisdiction of the trial court.’
infeasibility
rule
of the
is the
“At
bottom
of two
the
having authority over the same case at
the same
courts
Similarly,
County Department,
sеe: Lake
etc.
time. ***.”
603,
(1961),
335;
241 Ind.
N.E.2d
174
v. Roth
State v.
383,
(1954),
Ind.
119 N.E.2d
233
Farmers L.
Gurecki
Manning
(1968),
App. 519,
et al.
142 T.
236
&
Kragulac
(on
52.;
et al. v. Marich
al.
et
N.E.2d
rehearing),
App. 529,
142 Ind.
petition for
236 N.E.2d
(transferdenied).
58
recently
Supreme
was
reaffirmed
our
rule
Court
This
(1972), 259 Ind.
In the had filed from his convic- tion, during pendency the of such returned to the petition post-conviction trial Upon court file a rеlief. petition, the appeal.- denial he second Our Supreme subsequent stating: appeal, dismissed such Court ' appellant “At the the time filed his motion correсt transcript errors and of record in this in first Court the
appeal, the entire cause was removed from the trial court thereby depriving to this any Court the trial court of further jurisdiction Appeals (1957). over action. 2 I.L.E. 231§ We, therefore, appellant premature filing hold the in his post-conviction verified remedy motion for in the trial court аt a time when pending cause of same action was appeal.” (At in this on Ind., at 129 N.E.2d.) Similarly, Logal the case bar at when the'original by filing of dismissal proceedings record of the court, with the clerk of this general trial lost Thus, its' of the case.- purported proceedings Logal’s on “Petition to Reinstate” *3 nullity, in’'the trial court were a attempted áppeal and this must be dismissed.
The motions to dismiss heretofore filed in this cause are sustained, and this is dismissed.
Appeal dismissed.
Garrard, J., opinion; concurs with Staton, P.J. dissents with opinion.
Concurring Oрinion- J. —Because of the recent reaffirmance in Garrard, N.E.2d the doctrine trial court loses to further its review an pends, after is decision it while compelled I аm concur in the dismissal. join Judge
However, believing I in Staton that while several simultaneously engaged reviewing courts should not be in would which adopted decision, procedure be should a some remedies losing various party’s to the protect access permit consolidation by procedure and provided our codes аnd efficacious prompt presented so that a issues of the may reached. be determination Opinion
Dissenting Procedure, Trial Indiana Rules of P.J. —I dissent. Staton, yeаr within a after 60(B) permits a motion part: judgment.1 provides in The Rule evi- neglect Newly discovered “(B) Mistake —Excusable — are Fraud, upon terms On such as etc. motion and dence — just legal representative may party or relieve order, proceeding for the or a final default following reasons: neglect; mistake, surprise,
(1) or exсusable including error, any ground (2) to correct for a motion evidence, by due newly which discovered without limitation to move diligence in time been discovered could not have under Rule a motion correct errors or (whether intrinsic denominated (3) fraud heretofore an extrinsic), misrepresentation, or other misconduct party; adverse against party judgment by (4) was entered default without only by publication and who
who was served pro- judgment, order or knowledge action and actual ceеdings; ...” frustrated purposes the Rule should not be expressed appealable first appeal from the trial court’s or forfeited singularly purpose different judgment2 which has a —correc- during alleged trial which has been committed of an error tion procedural Rule brought attention. A new trial court’s provides part: 60(B) 1. TR.
Also 2. TR. see TR. tаken; reasons “The after 56(C). 54. motion the . . (1), shall be made within a summary judgment (2), (3) order and (4) or ' not proceeding on less than all more than one reasonable was enterеd- *4 time, the issues. [1] and year for or 164
is needed 60(B) for a functional TR. an where been taken judgment.3 from the trial court’s adopted by
Several solutions have been
federal courts.
the
First,
60(b)
presents
grounds
thе Rule
movant
relief
appeals,
to the court of
and it decides whether
the
hearing
cause should be remanded for a
on the motion. Weiss
(2d
1963),
711,
v. Hunna
Cir.
F.2d
denied,
312
cert.
83 S.Ct.
1920,
853,
1073; Zig Zаg
374 U.S.
10 L.Ed.2d
Spring Co. v.
Spring Corp. (3d
1953),
Second,
Cir.
In 699, Ferrell v. F.2d at suggested following rationale: 3. 259 Ind. 289 N.E.2d is not applicable pоst-conviction 60(B) one-year purpose-for filing to a TR. limitation. The 60(B) purpose. Secondly, is relief different from the TR. 60(B) generally is TR. used in rather than civil criminal cases. *5 tо relief party himself entitled . who considered might, appeal, on 60(b) also and both under Rule remedies, two occasion, required to elect between lie jurisdictiоn to con- appeal deprived the if district sug- 60(b). construction under Rule sider the motion gested by remedies avail- makes both Circuit Seventh think, right there- able, course. We and we think that is only not jurisdiction to consider fore, the this has appeals original final but from the .” 60(b) . denying . relief under from the both consolidate deny motion dismiss I would (B) litigation which a TR. 60 disрosition of appeals. Final certainty aof and the would be advanced been filed motion avoided. forced election Reported N.E.2d 309. at 338
Note. —
Ray Indiana. D. Howard 8,1975.] 1-475A77. December Filed
[No.