*1 Mаry Strate Albert Strate. May 26, Rehearing Filed 670A98. denied July 13,1971. 4,1971.] Transfer denied October Munger, Lafayette, appellant.
Thomas W. Bradford, Burns, Indianapolis, James W. William C. counsel, Lafayette, appellee.
On Motion to Dismiss matter Curiam. This on Per Motion to Dismiss. of action that this a cause appeаrs from plain- court found for the
for divorce. After August 13, 1969. tiff-appellant and entered on plaintiff filеd a Peti- Thereafter, 1969, the November *2 Judgment. Modify of and Set Aside Part tion To Vacate and motiоn for plaintiff file a no interval did At new trial. alleges therefor cause Motion to Dismiss days thirty filing from trial of for new a motion precedent appeal, and to a condition
the court’s decision was not record of cause were since the and Supreme Appellate Courts аnd the Clerk of the days ninety judgment, that this Court from of date does not have of this motion,
Concerning the first оf filing trial a for new condition of a motion precedent appeal, here- to must in mind the wе bear August adoption of the in was entered in say to procedure. current is not accurate rules While ap- precedent a for new condition motion trial was by rule, peal, requirеd, certain statute errors were Any presented such errors which a motion for new trial. filing up new оccurred time of motion trial included the motion were waived. and which were not August Supreme 1-14 both Court Rule
In (Burns’ trial Ind. Stat. motions for new pertaining to statute required 2-2403) the motion for new Anno. § date verdiсt from the of the be filed within filing of the motion for new or decision. jurisdictional, and when motion was trial was held be question concerning allowed, its no not filed within appeal. Matthew overruling presented v. Gavit could 425, 214 Sutton v. State N. E. 2d E. 2d 651. (1960), 240 Ind. trial, plaintiff filing her
Instead Petition Vacate Modify Judg and Set Part Aside response ment. In to the dismiss, plaintiff- appellant argues that a trial court retains judgments period over its for a of time within which may modify, vacate, completely change court judg its true, However, ment. That is of course. that fact not does nullify requirement timely filing of the of a motion for Appеllant new trial. cites case of Holmes N. E. 2d argument. her case, distinguishable however, jurisdictional question presented not to the Court, apparent itwas record. long been held the time for is nоt extended modify motions to judgment, motions to vacate or set aside judgment, re-open judgment motions to or motions recon Winkler sider. Sacks E.N. Dawson Wright *3 City (1960), Andrews 382, Richmond App. 131 Ind. Herald Marion 170 2d County N. E. Plan Cоmmission (1956), 1, App. Zimmerman 135 Zumpfe (1941), 2dE. 102. consistently requiring
Our held that Courts the statute mo tions for a new within filed after the decision, mandatory verdict or was that motions trial must filed within fixed any Lloyd’s statute in order raise issues оn Evansville, Inc., Ohning, Motor Sales etc. App.
Ind. 2dE. Southern Pacific Mitnik 201; Isley 58 N. E. 2d Isley Ind. 2d 513. appellee’s We now turn the second dismiss, transcript and record were not timely judgment filed. The record shows on its August 13, transcript entered on was was not filed this cause until October There 1970. petition for was no an extension which to file transcript during original ninety days filed immedi- ately following judgment. Thus, transcript filed and Court this is without cоnsider appeal only can dismiss it. appellee’s sustained, Motion to Dismiss is and this cause is dismissed.
White, J., opinion, dissents which
Dissеnting Opinion appeal judgment J. If this fromis rendered on White, August 13, 1969, it is too late and must be dismissed. ninety days was filed Oсtober more than judgment. after the rendition of that Since no motion for ninety days new trial (i.e., filed of the date judgment) request and no for additional time was made court, taking appeal time fоr was not extended. Peter 2-2; Carper Burghard Rule Old & Stone Co. appellee’s If appeal dismiss this had us shown “petition” appellant eighty-nine days after judgment nothing rendition divorce more than а belated and mis-named motion for new then it would have shown that we are without
the motion to appel dismiss should be sustained. But neither appellee’s lee’s motion briefs in of his motion tell anything “petition” at all about by appellant. For aught appears (and motion to dismiss briefs) alleged “petition” his could have facts dehors the (such fraud) which, if known trial court at judgment prevented the time he rendered would have him rendering *4 did he render. The denial of motions, petitions, complaints аlleging such facts often has appealable judgment. Jurdzy v. been treated Lip second 1, 6, tak Glоbe Min E. 2d ing Company Ridge Company (1922), Oak Coal Miedreich 76, 80, Lauenstein (Ind. App. N. Yocum Yocum E.
1969), E. Dec.
(Ind. App. 1969), Ind. Dеc. statutory regard case law been codified our (D). 60(B), (C), new rules as TR. system premise adversary
I
believe
to be a basic
of our
showing
sustained
that the burden of
should be
moving
Therefore,
party.
rests on the
the motion
dismiss
the denial
should be overruled for failure
show that
appealable
аppellant’s petition
vacate
an
statutory
(under
law codified
the rationale
case
foregoing rule).
Reported in
Farm Bureau Insurance Clinton, et al. Randall May 27, 1971.] 870A142. Filed