*1 doings handling hearing a full of executor and things necessary proper in of the estate for all other and and conformity opinion. with this
Robertson,
Lybrook, J., concur.
C.J. and
Note.—Reportеd at
Robert John Sasser and Motor Sims Transport Corp. D. Inc., A/K/A Steel Stone James Mansfield Mansfield. Yvonne August Rehearing 3-773A84. Filed June [No. denied 1975.] Jr., Royce Galvin, Frank J. Galvin, M. Galvin, Galvin & Fowler, Leeney, Hammоnd, Jacobs, counsel, of of Karl M. of appellants. McHie, Enslen, Boose, Lowell E. & Mo- E. Herbert Enslen ran, Barce, Elwood, counsel, Hammond, John W. Barce counsel, Vann, Fowler, appellees. & *2 appeal by defendants-appellants This is J. an Hoffman, Miller, Inc., Robert Transport, J. and John Sasser Sims Motor Transport Corp. (Miller) Steel and Stone from a/k/a portions of certain of a motion to correct errors by filed James D. and Yvonne Mansfield. August 18, 1970, complaint
On James Mansfield filed against seeking recovery injuries Miller personal for sustained in а by collision between an automobile driven and Mansfield a truck driven Robert Miller. date, theOn same Yvonne Mansfield, against wife, complaint James’ filed a Miller seek- ing recovery damаges for loss of consortium for her and to Following jury, automobile. trial before a was a verdict returned in favor Miller. of The Mansfields filed thereafter April on and such motion granted part. was part in and in A new overruled trial was granted jury and of the set verdict aside. The trial omitting errors, caption on court’s the motion to correct parts, as and formal reads follows: having Court, now the Court “Comes and heretofore argument heard on Plaintiff’s Motion To Correct Errors Court, having Response the Motion, and Defendant’s to examined now finds that said the Court said Motion to Correct allegations all Errors should be as overruled error based the evidence at the time trial introduced of the reading and to claim of error Defendant’s Instructions Nos. 4 No. 9. The further and Court finds that Motion said allegations admitting should sustained as into allegations Defendant’s Exhibit evidence No. 7 and as to the give Motion in said that the Court refused to Plaintiff’s Instruction Tendered a No. 13. Defendant’s Exhibit No. was which, photograph evidence, at the it was time into offered by marking portions be corrected had to certain off instructing jury ignore parts those marked so off. opinion Court, time, It is the at this that the admis- Exhibit No. in Defendant’s fact error sion said 7 was right prejudiced the Plaintiff’s in this trial. opinion Court “It is also the of this failure reversible that give error for thе Instruction No. 13 constituted Plaintiff’s following reasons: witness, Jerry- “The Defendant’s counsel asked a one questions Gray, implied Gray a series of that Mr. had (father son) informed Defendant’s counsel interested Mr. that he was money testimony. counsel, his Defendant’s Galvin, although present testify Court, chose not to require the fact so view of to do would him any remove as counsel proceedings himself further Gray independent only this cause. Mr. turned out to be the knowledge witness with first hand of the accident involved. give The failure of the Court to Plaintiff’s Instruction No. 13 jury could well have allowed the to have considered Mr. Gray’s light testimony prejudicial as, questions, in a before, directly credibility referred to attacked the argues questions witness. Defendant proper impeachment. ment’ and asked were they Cross Examination but that to constitute failed By ‘impeach- Defendant’s own definition of impeaching that, questions, the Court now finds considering questions given, referred to and the answers *3 grounds impeachment were, that the fact, in laid and part that the failure on (produce) of defense counsel a to implication made, required witness to to instruct the rebut Court the ignore jury the testimony to all Mr. that Gray. 7, (C.A. 1971), United See: States v. Bohle 445 p. F.2d 54 at opinion ‘produce’, “This is of Court that the word opinion, place testimony as record аnd in used that means to in merely presence not of a witness in court- a room. “WHEREFORE, considered, is adjudged it ordered and jury cause, that the Verdict heretofore in this entered hereby is trial.” sеt aside and this cause is remanded newa granting From the of the Mansfields’ motion to correct errors, Miller taken appeal. has this Ap- See: Ind. Rules of pellate Appellate (A). Procedure, 4Rule question
The sole which will considered whether, is fol- lowing judgment entry granting, court ordering appellees’ correct errors part, a new 586 necessary appellants file a correct
trial, it motion to errors. (1974), App. 290, Davis N.E.2d Davis 159 Ind. 306
In v. 377, denied), (transfer this court at stated: 380 Supreme interpreted “Thus, Court has Rule AP. grants 4(A) that if trial court or denies motion to mean a a accompanied by entry errors which is or to correct judgment consisting amendments, findings, of additional judgment, ag prior party alterations of other thereby grieved must file a motion to correct errors ad entry judg has become dressed to the final appeal interpretation ment is taken. With this from which only agree, so, not logically we are but we because because bound do specificity stresses the al need for leged appeal process. The errors in first sentence of referring 4(A) appeals judg Rule ‘from all final AP. denominating ruling
ments’ as well as second sentence a judgment, on motion final thus given (Footnote omitted.) force effect.” State v. See: Deprez (1973), 413, 120; Ind. 260 296 N.E.2d Koziol v. 232, County (1974), App. Lake Plan Commission 161 Ind. (transfer dеnied) ; Easley N.E.2d 315 374 v. Williams (1974), App. 24, 105; 161 Ind. 314 N.E.2d State v. Kushner (1974), App. 464, (transfer Ind. 312 N.E.2d 160 523 de nied) ; Wyss Wyss App. (1974), 281, 160 Ind. 311 N.E.2d v. (transfer denied). discussing recently, application More of the case of Deprez, supra, court, State to a situation which a trial granting after errors, motion to correct entered a new and judgment vacating amended previous judgment, its court Corporation (1974), in Weber v. Penn-Harris-Madison School 32, App. 28, 162 Ind. at at said: Deprez court, Court reads “This mean that if the trial ruling anything on the motion to errors, does simply denying motion, other than judgment becomes a new which a *4 new motion correct errors must be directed. any Therefore, judgment amendment of a creates a new judgment requires a motion to correct errors.” bar, granted, part, appellees’ In case at trial court motion provisions correct Under errors. AP. of Rule
587 By judgment. 4(A), supra, is final such deemed vacating operation, it had effect judgment previous court’s which was entered on entry jury. Thus, verdict we must conclude granting judgment appellees’ motion correct errors ordering judgment necessitating a a new trial creates a new subsequent motion to corrеct errors.
Appeal dismissed.
Staton, P.J., concurs; Garrard, J., opinion. dissents with
Dissenting Opinion I dissent from what I ma deem to be the Garrard, jority’s application blind of the doctrine announced State Deprez (1973), 260 Ind. proceed ings in this case. Procedure,
Indiana Rules of Trial Rule 59 be read must conjunction Appellate 4(A) with Rule provides in part: “A denying or order the trial court or a motion to correct errors judgment, shall be deemed a final may appeal
and an be taken therefrom.” hand, On the other TR. provides a much more broad authority simply granting action the trial cоurt than denying 59(E). a new trial. paragraph TR. In (G) it also requires upon motion, error presented by relied however and whenever the prior error occurred to the time filing.
When trial court upon rules may a TR. 59 it motion findings already amend findings made add new potential an error or inadequacy perceived by the It court. similarly alter, may amend, modify judgment. or correct donе, reality Where is there is in judgment. a new change Even findings where the is in the previous judgment re-entered, is procedurally judgment findings. it is entered The procedural desirability of logical. such cases is It eliminates continued *5 original motion assignment the pursuit of error an court, longer pertinent. places It before which is no assignments specifications review, and this court the or mоdifications depend upon arise amendments out ruling by in its on motion. made first court response motion When, however, the court first motion simply trial, those reasons for another orders а judg- simply do not exist. There no new assign may its Furthermore, reasons the court ment. make practical as matter reversal does not error, already con- present, The if has desirаble. viable been preservation the trial court and needs no further sidered very amplification proper to enable to make a review. The us expression con- its reаson court demonstrates its conclusion issue and thereon. sideration of during Furthermore, majority opinion, in the as set forth clearly an exhibit trial court admitted discretionary purport mаtter since exhibit not did representation interchange a full true judge existed the time of The at the collision.1 concluded that admitting he had his discretion in abused the exhibit and that (1). Although (A) fair TR. 59 this had denied trial. another might judge cannot conclusion, not have reached same I say judge clearly trial erred his determination. He tried position improper the case and is in the best decide grant impact Accordingly, the exhibit. I would affirm the of a new trial.
Note.—Reported at 113. admitting distinguished Review of evidence should be from question legal on review where is restricted to a admissi- bility. instances, inquiry In such the trial court’s on a motion errors is to determine whether the item was admissible.