SACKS v. WINKLER ET AL.
No. 20,490
Appellate Court of Indiana
May 15, 1967
Rehearing denied June 14, 1967
226 N. E. 2d 165 | 226 N. E. 2d 172 | 227 N. E. 2d 177
Transfer denied October 3, 1967. Motion to Re-consider denied November 16, 1967.
Judgment reversed.
Pfaff, P. J., Bierly and Smith, JJ., concur.
NOTE.—Reported in 226 N. E. 2d 165.
[No. 20,490. Filed May 15, 1967. Rehearing denied June 14, 1967. Transfer denied October 3, 1967. Motion to Re-consider denied November 16, 1967.]
A. M. Thomas and Thomas, Muse Buehl & Thomas, both of Indianapolis, for appellees.
BIERLY, J.—This appeal emanates from the Marion Circuit Court of Marion County, as a result of said court‘s actions in dismissing appellant‘s (plaintiff below) complaint for want of prosecution.
The pertinent dates, following the filing of the complaint on the 12th day of May, 1961, are summarized as follows:
On June 28, 1961, the defendants filed their answer, thus putting the cause at issue. Nothing was done until September 22, 1964, when the trial court placed the case on call of the docket which was set for October 15, 1964.
Evidently it was taken off the call of the docket for the next pleading was filed on November 13, 1964. This was a petition for conditional examination of the plaintiff, and also an order on said petition was issued for plaintiff to appear for said examination on a day named. He did not appear.
Then, on January 29, 1965, the defendant filed a motion to dismiss said cause of action in accordance with
On March 1, 1965, the defendant filed a motion in opposition to plaintiff‘s motion to reinstate. The trial court overruled plaintiff‘s motion to reinstate said cause on September 3, 1965.
On October 1, 1965, plaintiff filed his motion for a new trial. Since there had been no trial this motion was a nullity. Therefore, it could not serve to extend the time for perfecting the appeal.
On May 9, 1966, the transcript and assignment of errors was filed with the Clerk of the Supreme and Appellate Court.
It thus appears from the record that the cause was dismissed on February 16, 1965, but that the assignment of errors and transcript were not filed until May 9, 1966, as above stated.
It is well settled law that a dismissal of a cause of action by a trial court is a final judgment from which an appeal lies, and that a motion for a new trial in such cases is a nullity. Meier, etc. v. Soc. Sec. Adm. et al. (1958), 237 Ind. 421, 146 N. E. 2d 239, and cases cited therein.
Such being the case, the time in which appellant in this cause had to perfect his appeal commenced with the dismissal of the action in the trial court and not with the date on which his motion for a new trial was overruled, since such motion was a nullity.
Rule 2-2 of the Rules of the Supreme Court provides in part:
“In all appeals and reviews the assignment of errors and transcript of the record must be filed in the office of the clerk of Supreme Court within ninety [90] days from the date of the judgment. . . .”
Since appellant has not perfected his appeal within the time allowed by Rule 2-2, supra, we have no jurisdiction in the matter and must dismiss the appeal.
Appeal dismissed.
Pfaff, P. J., concurs; Smith, J., concurs.
Cook, J., not participating.
DENIAL OF PETITION FOR REHEARING
BIERLY, J.—Appellant has filed what he entitles a “Motion to Reinstate Appeal.” Such a motion is proper only when the appeal has been dismissed for want of prosecution by this court in accordance with
The above “Motion” was filed on May 31, 1967, following our opinion dismissing the action on May 15, 1967. Briefs in support of the said motion were filed on June 5, 1967.
In his motion, appellant alleges several errors in our dismissal, which, in effect, raise the question of when the judgment in the lower court became a final judgment. It is appellant‘s contention that by reason of his filing a motion to reinstate in the trial court, and by the trial court‘s action in setting same for oral argument, the judgment of dismissal did not become final until said motion was overruled by the trial court on September 3, 1965.
With this contention we cannot agree. As we pointed out
The only circumstances in which a dismissal date does not become the date on which the time for appeal commences to run would be in the unusual instance when the trial court was without authority to dismiss in the first place, thus any attempted dismissal would be void and the court would be required to reinstate the cause. See: Slagle v. Valenziano (1963), 134 Ind. App. 360, 188 N. E. 2d 286. Of course, where a new complaint is filed pursuant to
Appellant also alleges error in our opinion dismissing this cause in that a dismissal for want of prosecution is not one of the grounds under
Finally, appellant alleges we failed to consider in our opinion the fact that the time for filing the transcript and assignment of errors had been extended by this court upon the petition of appellant. It appears from the record that on December 8, 1965, and on March 10, 1966, this
“Since the judgment in this appeal was entered without any trial (as in the case at bar), the motion for new trial presented nothing and could not extend the time for perfecting an appeal. Under Rule 2-2 the time for perfecting the appeal by filing a transcript and assignment of errors with the clerk of this court had expired before we made an order which did not authorize a belated appeal, but only assumed appellants’ position on the record was correct, and granted a regular extension pursuant to the rule. Our action did not foreclose the appellees from moving to have the cause dismissed.”
The court is of the opinion that the petition for rehearing in the case at bar should be denied.
Petition for rehearing denied.
Pfaff, C. J., concurs; Cook, J., not participating;
Smith, J., concurs.
Reported in 226 N. E. 2d 172.
NOTE.—Rehearing Denied in 227 N. E. 2d 177.