Eilts v. Hines

257 N.E.2d 683, 146 Ind. App. 197, 1969 Ind. App. LEXIS 351

• Court: Indiana Court of Appeals
• Decided: December 23, 1969
• Docket: No. 669A98
• Status: Published

Opinions

Per Curiam

On October 31, 1969, the appellees, by counsel, filed a motion to dismiss this appeal, or in the alternative to affirm the judgment below, for the following reasons:

1. That upon the petition of appellants herein, this court entered an order on June 18, 1969, extending the time within which to file the transcript and assignment of errors to and including July 21,1969.

2. That appellants failed to file the transcript and assignment of errors in the office of the clerk of this court on July 21, 1969, but filed the same on July 22, 1969, as evidenced by the “Filed” stamp of the clerk upon said transcript and assignment of errors.

3. That under Rule 2-2 of the Supreme Court, this court has no jurisdiction of an appeal unless the transcript and assignment of errors is timely filed.

4. That the sole error assigned by the appellants for reversal is that the trial court erred in overruling appellants’ motion for a new trial.

5. That no motion for a new trial was filed by the appellants subsequent to the entry of a final judgment by the trial court on March 21,1969.

6. That the trial court entered judgment in favor of the appellees and against the appellants on the 27th day of January, 1969, which judgment was later modified on March 21,1969.

7. That appellants filed a motion for a new trial on February 26, 1969, which was within 30 days of the date of the final judgment entered on March 31,1969.

8. That in accordance with Rule 1-14A of the Supreme Court, appellants were required to file their motion for a new trial within 30 days of the judgment of the trial court entered on the 21st day of March, 1969, or, on or before April 21, 1969, and that said appellants had failed to do so.

It is the opinion of this court that because the transcript and assignment of errors were not timely filed in accordance with the provisions of Rule 2-2 of the Supreme Court, this appeal should be dismissed.

It is, therefore, ordered, decreed and adjudged that this appeal is hereby dismissed, costs assessed against the appellants.

On Appellee’s Motion To Dismiss Or Affirm

Per Curiam — This matter is before us on the appellees’ Motion to Dismiss or Affirm. Said motion sets forth, in substance, the following:

1. That the sole error assigned by the appellants for reversal is that the trial court erred in overruling appellants’ Motion for New Trial.

2. That the trial court entered judgment in favor of the appellees and against the appellants on January 27, 1969. That the appellants filed a Motion for New Trial on February 26, 1969.

3. That on March 21, 1969, the Court modified its original j udgment.

4. That the appellants did not file a second motion for new trial after the judgment was modified on March 21, 1969.

The single assignment of error on appeal is that the Court erred in overruling the appellants’ motion for new trial. The single specification of error in the motion for new trial is that the decision of the Court is contrary to law.

The appellees argue that the appellants’ failure to file a motion for new trial subsequent to the trial court’s entry of a modified judgment on March 21, 1969, results in their presenting no question for review by the assignment of error that the trial court erred in overruling appellants’ motion, for new trial filed on February 26,1969.

This Court has held that when a trial court opens and amends a judgment, after a motion for new trial has been ■filed, a second motion for new trial should be addressed to the amended judgment. Newton v. Board of Trustees for Vincennes University (1968), 142 Ind. App. 391, 235 N. E. 2d 84, and cases cited therein; Hunter v. Hunter (1969), 247 N. E. 2d 236.

In the Newton case the appellants did not file a second motion for new trial after the original judgment was amended. This Court held as follows:

“(2) Therefore, we are of the opinion that the proper procedure to have saved the errors advanced in the first ■motion would have been for the Appellants to have filed a second motion for a new trial after the original judgment had been opened and amended, or modified, and to have renewed the averred errors charged in the original motion for new trial.”

By reason of the authority of the Newton case and the Hunter case, this Court is of the opinion that the appellants have presented no question for review by the assignment of error that the trial court erred in overruling the motion for new trial.

The appellees’ Motion to Dismiss is sustained; costs vs. appellants.

Sullivan, J., dissents with opinion in which White, J., concurs.