Aldridge v. ALDRIDGE

Indiana Court of Appeals

Aldridge v. ALDRIDGE

233 N.E.2d 781, 142 Ind. App. 289

CourtIndiana Court of Appeals

DecidedMarch 28, 1969

Docket20,709

StatusPublished

Cited by15 cases

This text of 233 N.E.2d 781 (Aldridge v. ALDRIDGE) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Aldridge v. ALDRIDGE, 233 N.E.2d 781, 142 Ind. App. 289 (Ind. Ct. App. 1969).

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Opinions

Carson, C. J.

— This is an appeal from the Howard Superior Court. The action below was brought by the appellant against the trustee for distribution of certain trust funds. The appel[290]*290lee-trustee, filed a counterclaim for fees as trustee and attorney fees for himself. The co-appellee also filed a counterclaim in four (4) paragraphs.

The court below entered a summary judgment in favor of the co-appellee, Marianna D. Aldridge. This summary judgment was entered on the 16th of October, 1966. A motion for a new trial was filed and was overruled by the court on December 1, 1966. The record shows that the transcript and assignment of errors were filed in this court on February 3, 1967.

In the dissenting opinion, in the case of Kapusta v. DePuy Mfg. Co. (1967), 141 Ind. App. 479, 229 N. E. 2d 828, 832, Judge Faulconer held that a summary judgment was not a trial, and that the transcript and assignment of errors should be filed within ninety (90) days from the date of the entry of the summary judgment by the trial court, and not from the date of the court’s ruling on a motion for a new trial.

After an examination of that dissenting opinion and a further review of the authorities in other jurisdictions, and in the Federal Court, we conclude that the motion for a new trial was improper, as the summary judgment proceeding is not a trial. Collins v. Toombs (1946), 271 App. Div. 160, 63 N.Y.S. 2d 545; Weisberg v. Perl (1954), Fla., 73 So. 2d 56; Ottoman v. Interstate Fire and Casualty Company (1960), 171 Neb. 148, 105 N. W. 2d 583; Parmelee v. Chicago Eye Shield Co. (1946), 157 F. 2d 582, 168 A.L.R. 1130.

We conclude, therefore, that the appellant has not complied with the provisions of Rule 2-2 of the Rules of the Supreme Court of Indiana and that, therefore, this appeal should be dismissed.

Appeal dismissed.

Cooper, J. and Faulconer, J., concur.

Prime, J., concurs in result with opinion.

Note. — Reported in 233 N. E. 2d 781.

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Carson, C. J.

— This is an appeal from the Howard Superior Court. The action below was brought by the appellant against the trustee for distribution of certain trust funds. The appel[290]*290lee-trustee, filed a counterclaim for fees as trustee and attorney fees for himself. The co-appellee also filed a counterclaim in four (4) paragraphs.

The court below entered a summary judgment in favor of the co-appellee, Marianna D. Aldridge. This summary judgment was entered on the 16th of October, 1966. A motion for a new trial was filed and was overruled by the court on December 1, 1966. The record shows that the transcript and assignment of errors were filed in this court on February 3, 1967.

In the dissenting opinion, in the case of Kapusta v. DePuy Mfg. Co. (1967), 141 Ind. App. 479, 229 N. E. 2d 828, 832, Judge Faulconer held that a summary judgment was not a trial, and that the transcript and assignment of errors should be filed within ninety (90) days from the date of the entry of the summary judgment by the trial court, and not from the date of the court’s ruling on a motion for a new trial.

After an examination of that dissenting opinion and a further review of the authorities in other jurisdictions, and in the Federal Court, we conclude that the motion for a new trial was improper, as the summary judgment proceeding is not a trial. Collins v. Toombs (1946), 271 App. Div. 160, 63 N.Y.S. 2d 545; Weisberg v. Perl (1954), Fla., 73 So. 2d 56; Ottoman v. Interstate Fire and Casualty Company (1960), 171 Neb. 148, 105 N. W. 2d 583; Parmelee v. Chicago Eye Shield Co. (1946), 157 F. 2d 582, 168 A.L.R. 1130.

We conclude, therefore, that the appellant has not complied with the provisions of Rule 2-2 of the Rules of the Supreme Court of Indiana and that, therefore, this appeal should be dismissed.

Appeal dismissed.

Cooper, J. and Faulconer, J., concur.

Prime, J., concurs in result with opinion.

Note. — Reported in 233 N. E. 2d 781.

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233 N.E.2d 781, 142 Ind. App. 289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aldridge-v-aldridge-indctapp-1969.

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