*1 347 Medsker State 219; (1968), 249 Ind. 2d 266 N. E. Stallings (1967), v. State 869; 2d 232 N. E. E. 2d 29.
N.
Judgment affirmed. Prentice, JJ., C.J.,
Arterburn, DeBruler, concur. Givan and Reported E. 10. in 269 2d N. Note. — Community et ux Point v. Crown Richards Corp. et al. May 3, 1971.] 570S105. Filed [No. *2 Hammond, Reed, appellants. for D.
Kenneth Leeney, Stanton, Galvin, Dennis J. Edmond J. Galvin & appellees. Hammond, Leeney, for matter comes before us for on a Curiam This Per granting appeal to this court from a of a direct summary judgment. for a of a motion real Appellants Richards were holders in fee of certain County, Lake In land estate situated in Indiana. by procedure appropriated proper to the use of the was City appellants compensated Point and of Crown were corporation accordingly. land sold the In the school property that the determined appellee when it was Schmal Appellants filed longer purposes. was needed for school no corporation claiming taken appellee had that school an action property fee and that to a what amounted determinable longer educa- no needed for them if it was should revert challenged in which the manner purposes. Also tional matters appellee conducted and other Schmal was the sale to pertinent not here. summary judgment
Appellees which filed content of trial court. The follows: by agreement parties stipulate “And now plaintiff’s complaint
description in And now the court contained in land question. the real this cause is correct and is estate AND ADJUDGES that said FINDS summary judgment and the motion for should be sustained title AND ADJUDGES that FINDS to said is in Point real estate the Crown *3 Community Corporation County, in Lake and the Court FURTHER mat- AND ADJUDGES that all FINDS pertaining ters not to at the title of said real are estate upon complaint issue in this cause said and the answers files (sic) thereto.” A correct errors was not filed in trial motion to the court. brought Appellant then matter this court on before appeal. appellees The filed a direct motion to dismiss ground that since the order matter here trial court judgment as to real estate a constituted a final to the appeal have been motion to correct errors should filed and an hand, Appellant, Appellate to Court. on the other taken since of the trial inter- contended that the order court was necessary locutory motion errors under that no to correct was rules a direct before this would lie. opinion. motion dismiss
We to without
350 apprise parties fully
To our more the basis of holding we take the occasion of for clarify previous ruling. to our presented may
The issue here be resolved reference to regard earlier decisions with to what constitutes an interlocu- tory order.
An hearing order is one made final before the requires something
on the merits.
It
to be
or
done
controversy.
observed but does not determine the entire
(1954),
Bahar v. Tadros
234 Ind.
trial court to refuse con to pursuant firm a transfer made thereto. On motion to an dismiss from that this court held there the order was and not final. The reason holding power was retention of the in the court resulting deny validity goes opinion to a to sale. The on to the character of an it is order that note determines its interlocutory. or classification Zumpfe, supra, Zumpfe In Smith the same of v. Picca dilly Realty Company (1938), E. 2d 715 N. distinguished. holding It was noted that in the latter
a motion for an order direct trustee to sell assets hearing. denial, trust was after a denied Such a it held, properly regarded a final in that upon put matter ruled to rest. court had reserved jurisdiction no subject upon. as to some feature of the ruled controversy It determined the there in issue and denied petition. cross go
We need no further putting to indicate that it is a rest of an appealable issue that renders it *4 as a final order. question then becomes one of whether such action present
was taken in appellants’ case. We find the words as used in opposition their brief in to the motion expressive any: to dismiss as as matter what that no it is obvious at bar “In the case propriety question of the of on the decision
ultimate
problem
title to the
is who owns
sale,
crux
real
of
The trial court
here.
is what is
That
estate.
real
has decided
emphasis)
(our
finality possible.”
with all
issue
that
concede,
of
Having made,
appellants
determination
as
by
of
ownership
means
question of the
interlocutory
summary judgment,
appeal under
an
improper. A
errors
motion to correct
procedure was
appellate
59(G).
review. TR.
proper avenue to
challenge
rely
part upon
that
their
in
the fact
Appellants
sold has not been
manner
land was
which the
position that the order below
support their
determined to
However,
expressed in
as
Guthrie
and not final.
Blakely (1955),
167,
In we we or, action as is judgments of whole of a cause of either the (C), specific portion and distinct allowed TR. 56 of a being final orders under our thereof through usual their review will lie As such rules. correct appellate process after the of motion to errors. 59(G). that, if it an further motion here is the fact even were Of judgment, not a final order and *5 subject the trial court did not deal with a which would appealable interlocutory render the order an order as this court defines that term. provisions 1969,
We refer to the Acts ch. embodied in of 72b, 72(b). pro- Sec. Rule IC 34-5-1-Rule As is vided there: interlocutory appeal to “(b) An Appeals from orders. may Supreme be taken from an following judge any court or thereof in the order of cases: trial money compel payment execution (1) of or to For delivery assignment any writing, or of of instrument of or things debt, any securities, of documents or evidences action;
in delivery possession (2) property of real For the of thereof; or the sale (3) Granting, refusing dissolving grant, or or over- to or preliminary injunctions; motions to dissolve judgments upon (4) Orders and of cor- writs habeas pus ; or Any (5) other order if the trial court appeal judge and or a certifies on thereof finds petition appellant that: A. The will suffer substantial damage expense, injury or if the erroneous and judgment, determination thereof until is withheld after or (b) (sic) question The order involves substantial law, early promote determination of which will a more orderly disposition case, remedy by appeal or C. The judgment inadequate. after an is otherwise The appeal (5) under (b) subsection of subdivision of this stay proceedings rule shall not in the trial court unless the judge judge appeal trial court or the court on or a thereof order, may shall so and such order upon be made conditional furnishing security protecting aof bond or appellee against thereby, any.” loss incurred if viability provisions dispel any mention the these We may uncertainty which result from their exclusion from the publication “Indiana entitled Rules of Procedure”. Their ab- handy form from the reference of our sence rules upon but, reflection their continued existence is no in all hereby oversight, judicial one which we candor, represents deem corrected. that, hereby finds foregoing reasons the court
For all the question judgment title as to the fee the order lay order, proper route of having been review errors and a before to correct 59(G). Appellate Court. previously dismiss direct motion re-affirmed. is therefore to this court
Rehearing denied. DeBruler,
Prentice, J., participating; J., dissents with not opinion.
Dissenting Opinion appellants’ required J. At the time counsel was DeBruler, errors, to decide to make a motion to correct whether only interpreted months had not three old and been rule does not state this Court. necessary precedent is a condition correct errors
following entry summary judgment. Conflicting ap- of a governing opinions interpreting pellate our former rule point trial existed at this the motion for new time when lawyer had to act. apply interpreta- circumstances I would not
Under these
given
today,
case,
the first
TR. 59 for
time
to this
tion
deny
therefore,
would,
vote to
this motion to dismiss as I did
September 13,
when this Court
its
entered
dismissing
appeal.
this
Reported in
Note. — Melba Dean Madison State Indiana. May 3, Filed 870S186. 1971. No
[No. filed.]