Hudson v. Tyson

383 N.E.2d 66, 178 Ind. App. 376, 1978 Ind. App. LEXIS 1163

• Court: Indiana Court of Appeals
• Decided: November 27, 1978
• Docket: 2-377A88
• Status: Published

Opinions

Shields, J.

This is an appeal from an order in proceedings supplemental pending before this Court on the Appellee’s Motion to Dismiss or in the Alternative to Affirm Judgment, which alleges that the appeal was not timely brought. We deny the Appellee’s Motion.

Plaintiff-appellee Tyson was shot by his bailbondsman in the bondsman’s attempt to capture him and bring him into court on an outstanding bench warrant. Tyson brought a suit for damages against the bail-bondsman, the bondsman’s partner, and the insurance company which underwrote the bond. Tyson obtained a judgment against all three defendants in the amount of Ten Thousand Dollars which was not appealed.

Subsequently, in the same cause, Tyson filed a Petition for Proceedings Supplemental to Execution under Indiana Rules of Procedure, Trial Rule 69(E),¹ naming the Appellant Hudson, Insurance Commissioner of Indiana, as garnishee-defendant. The petition sought to apply money on deposit with the Insurance Commissioner belonging to the defendant insurance company in satisfaction of the judgment.

On September 9,1976 the trial court entered its order of garnishment against the garnishee-defendant Hudson. However, the trial court stayed execution of its order pending appeal. Hudson filed a motion to correct errors on October 27,1976, which was overruled on December 17,1976. Hudson filed his praecipe on December 17,1976. On December 20,1976 the trial court vacated the stay and ordered payment of $6,200.00, the balance then due on the original garnishment judgment. On March 14, 1977 Hudson filed a petition for extension of time to file the record, which was granted. A second extension of time was thereafter granted upon Hudson’s petition. The record of the proceedings was filed with this Court on July 18, 1977.

Tyson seeks to dismiss, or in the alternative to affirm judgment, for the reason that Hudson failed to perfect a timely appeal from the judgment entered September 9,1976. Tyson’s argument may be summarized as follows:

1. T.R. 59(G) specifically says that a motion to correct errors is not required in appeals from orders in proceedings supplemental to execution. Therefore, Hudson’s filing of a motion to correct errors on October 27,1976 had no effect on the appellate process.

2. Pursuant to Indiana Rules of Procedure, Appellate Rule 3(B), the time for appeal expired 90 days from the September 9,1976 judgment. Since neither the record of proceedings nor a motion for extension of time to file the record was filed within 90 days from the September 9,1976 judgment, this appeal was not timely brought.

In response, Hudson argues that the trial court’s order of December 20, 1976, which vacated the stay of execution issued on September 9, 1976 and ordered payment of the balance then owing on the original garnishment judgment, constitutes a new judgment from which the appeal was properly taken. Hudson also urges, as an alternative, that the appeal is from the ruling on the motion to correct errors made by the trial court on December 17, 1976.²

There is, however, one further alternative. If this appeal is from an interlocutory order, rather than a final judgment, we plainly are without jurisdiction. Appellate Rule 3(B) requires that in an appeal from an interlocutory order the record must be filed within 30 days of the ruling on the order. Neither the motion to correct errors nor appellant’s petition for extension of time was filed within 30 days of either the September 9, 1976 entry or the December 20, 1976 entry.

For reasons which follow, we conclude the appeal was timely.

I.

Our first question is whether the entry of September 9, 1976 is interlocutory in nature or a final appealable judgment.

Critin v. Critin (1928), 199 Ind. 737, 164 N.E. 493, 494, defines an interlocutory order as:

[a judgment, order or decree] made before the final hearing on the merits. 2 Watson’s Rev. of Works’ Practice § 2244; 1 Hogate, Pleading and Practice § 739; 1 Freeman on Judgments (5th Ed.) § 38. An order of the court, made in the progress of the cause, requiring something to be done or observed, but not determining the controversy, is an interlocutory order, and is sometimes called an interlocutory judgment. Pfeiffer v. Crane, (1882) 89 Ind. 485, 487; Western Union Telegraph Co. v. Locke, (1886) 107 Ind. 9, 11, 7 N.E. 579.

A final judgment differs from an interlocutory order in that it represents the ultimate determination of the court upon the matter. A final judgment “disposes of all issues as to all parties, to the full extent of the court to dispose of the same, and puts an end to the particular case as to all of such parties and all of such issues."State ex rel. Neal v. Hamilton Circuit Court (1967), 248 Ind. 130, 134, 224 N.E.2d 47.³

Indiana case law indicates that an order, such as the entry in question here, is a final appealable judgment.

In Mitchell v. Godsey (1944), 222 Ind. 527, 53 N.E.2d 150, the judgment debtor appealed an order which directed him to pay over to the judgment creditor a percentage of the salary received from his employer. The order did not, as here, involve a third-party garnishee defendant. Our Supreme Court, nevertheless, treated the order as final and appealable even though the petition had been filed in the same cause and even though there existed at the time, as now, a limited 30-day period for filing of an interlocutory appeal.⁴

Although Mitchell was concerned with the statutory proceedings supplemental process since it pre-dates TR. 69(E), we find nothing in the present Rule to suggest that a different result should obtain. Trial Rule 69 was merely intended to simplify the pleading procedure. “Its basic tenet is that proceedings supplemental to execution is a continuation of the original cause, is not a new action, and should be allowed to proceed without the technical showing that execution has been commenced or would be unavailing.” Harvey and Townsend, Indiana Practice, Vol. 4, p. 469-70 (1971). The Rule otherwise directs that “the case shall be heard and determined and property ordered applied towards the judgment in accordance with statutes allowing proceedings supplementary to execution.” See, Protective Insurance Co. v. Steuber (1977), 175 Ind.App. 139, 370 N.E.2d 406, 410-412.

To the extent that Bell v. Wabash Valley Trust Co. (1973), 156 Ind.App. 476, 297 N.E.2d 924, is relied upon to support the proposition that an order in a proceedings supplemental is necessarily interlocutory, such reliance is ill-founded. In Bell we did cite Pounds v. Chatham (1884), 96 Ind. 342, for the proposition that an order in a proceedings supplemental requiring a third-party garnishee to pay a judgment creditor money was such “payment of money” as contemplated under Appellate Rule 4(B)(1), which sets forth those interlocutory orders which are appealable.

The order in the Pounds decision, however, was held to be a final appealable judgment. The Court in Pounds merely proceeded to speculate that, even assuming such order to be interlocutory, the appeal would nonetheless be proper since the order directed the payment of money as was required under a statute identical in language to Appellate Rule 4(B)(1).⁵

As other Indiana cases indicate, an order in a proceedings supplemental can be interlocutory in nature. The proper analysis for determining whether the order is final or interlocutory is set forth in McKnight v. Knisely (1865), 25 Ind. 336, also cited in Bell. There garnishee-defendants in a proceedings supplemental were ordered to make payment to the court pending outcome of the case. The court on appeal held the order to be interlocutory and, in so doing, distinguished it from a final order directing the defendant-garnishee to pay plaintiff:

An order to compel a defendant to pay a plaintiff money can rarely be said to be interlocutory. In the very nature of things, an interlocutory order for the payment of money, in most cases, is such an order as will place the money in a condition to abide the final judgment of the court.

Where, as here, the order directs the garnishee-defendants to make payment to the judgment-plaintiff, it is a final judgment. As stated in Pisarski v. Glowrszyn (1942), 220 Ind. 128, 133, 41 N.E.2d 358:

[Not] all orders for the payment of money are interlocutory. They may be interlocutory or they may be final.

McKnight v. Knisely, (1865) 25 Ind. 336, strongly relied upon by appellee, was clearly an appeal from an interlocutory order which required the payment into court there to abide final judgment. But in the case at bar the money was ordered to be applied to the satisfaction of appellee’s prior judgment. When so paid it would pass beyond the control of the court. This indicates finality.⁶

The garnishment order entered against Hudson comports with the notion of finality in every respect. The September 9,1976 entry resolved all the issues essential to the proceedings supplemental process: (1) that Tyson had a judgment against the bailbondsman, the bondsman’s partner, and the insurance company which underwrote the bond; (2) which judgment was unpaid in full; (3) that Hudson had monies in his possession belonging to the insurance company; and (4) that said monies were available for payment of the unpaid balance of the judgment.

Nor does the language of Trial Rule 59(G) alter our determination that the order in question was a final appealable judgment. Trial Rule 59(G) states that a “Motion to Correct Errors shall not be required in the case of appeals from interlocutory orders, orders appointing or refusing to appoint a receiver, and from orders in proceedings supplemental to execution.” Merely because interlocutory orders and orders in proceedings supplemental are both specifically enumerated in the Rule does not mean that all orders in proceedings supplemental are subject to the 30-day time frame for perfecting an interlocutory appeal. Trial Rule 59(G) deals only with the necessity of a motion to correct errors, not with the time for appeal.

There is language in Protective Insurance Co. v. Steuber (1977), 175 Ind.App. 139, 370 N.E.2d 406, apparently to the contrary. In holding that a motion to correct errors was not a condition precedent to appeal of an order in a proceedings supplemental, the First District stated, supra at 412, that an order against a garnishee-defendant is “ancillary to the underlying judgment in the original case” and as such, “can be appealed as an interlocutory order to this Court without the necessity of filing a TR. 59 Motion to Correct Errors.” Such language can be read as equating the final order in proceedings supplemental with an interlocutory order. Or, as we hold here, it can be read as referring only to the necessity for filing a motion to correct errors. That is to say, a motion to correct errors need not be filed in an appeal from the order in a proceedings supplemental, just as it is unnecessary in the case of an interlocutory appeal.⁷

Furthermore, the rationale underlying the shorter time frame for interlocutory appeals is the need to expedite the process and avoid unnecessary delay in the subsequent and pending litigation. See, Local Union 403, Bartender’s Restaurant & Miscellaneous Hotel Employees Union v. Demetrakopoulos (1939), 215 Ind. 452, 19 N.E.2d 466. This exigency is simply not present in appeals from orders of a final nature in proceedings supplemental.

We therefore conclude that this is an appeal from a final judgment and, as such, it is not subject to the 30-day time limit for interlocutory appeals.

II.

We consider next the procedure for perfecting an appeal from a final order in a proceedings supplemental. Must appellant file the record within 90 days of the order? Or does the optional filing of a motion to correct errors alter this time, so that the 90-day period commences with the ruling on the motion to correct errors?

Trial Rule 59(G) specifies those cases in which the motion to correct errors is not required. The negative mandate does not mean that a motion to correct errors cannot be filed in the enumerated orders. The Rule merely permits a prospective appellant to proceed, at his option, with or without the filing of a motion to correct errors.⁸ See, Myers v. Hoover (1973), 157 Ind.App. 310, 300 N.E.2d 110.

As to the effect, if any, of the filing of an optional motion to correct errors, we turn to Appellate Rule 3(B). The relevant part of the Rule reads:

In all appeals and reviews, except those from interlocutory orders, the record of the proceedings must be filed with the clerk of the Supreme Court and Court of Appeals within ninety (90) days from the date of the judgment or the ruling on the motion to correct errors, whichever is later. (Emphasis added.)

If the italicized language is to have any meaning, it must indicate that the 90 day time period commences to run either from the date of the judgment or the ruling on the motion to correct errors, if one has been filed. Hence, in conjunction with TR. 59(G), this language provides that the filing of a motion to correct errors is optional; if it is omitted, the record must be filed within 90 days of the final judgment; but if it is filed, the record must be filed within 90 days of the ruling on the motion (or the judgment, whichever is later).⁹

This provision for an optional motion to correct errors has a definite purpose, given the nature of the proceedings supplemental process. The issue in such cases is ordinarily a simple one: does the garnishee-defendant have monies in his possession that can be made subject to payment of the judgment previously entered against the judgment-defendant? By the optional motion to correct errors, a prospective appellant can bring any alleged error to the attention of the trial court for correction, and if resolved, thereby avoid the expense and delay of an appeal. If the alleged error is not resolved by the trial court, then appellant has 90 days from the ruling on the motion to correct errors within which to perfect an appeal.

Thus, the Rules provide alternative procedures in the case of an appeal from a final order in proceedings supplemental to execution. The prospective appellant may file a timely motion to correct errors and appeal from the overruling of that motion in the manner of an appeal as from any other motion to correct errors. Or appellant may perfect an appeal directly from the final order.

Under the first alternative, the prospective appellant files his motion to correct errors within 60 days of the final order in proceedings supplemental, his praecipe within 30 days after the trial court’s ruling on the motion to correct errors, and then the record of the proceedings, together with a certified copy of his motion to correct errors, within 90 days of the ruling on the motion to correct errors (or the judgment, whichever is later). See, Ind. Rules of Procedure, Trial Rule 59(C) and Appellate Rules 2(A), 3(B), and 7.2(A)(1)(a).

Under the second alternative, the prospective appellant appeals merely by filing his record of the proceedings within 90 days of the final order in garnishment. This appeal route requires the inclusion of an assignment of errors in the record.¹⁰

In the case at bar, appellant exercised the option available to him under TR. 59(G). Hudson filed a motion to correct errors on October 27, 1976 directed to the trial court’s judgment of September 9, 1976, which motion was timely under T.R. 59(G). Thereafter, on December 17, 1976, the trial court overruled his motion to correct errors and the 90 day time period for perfecting the appeal began to run. The praecipe was timely filed on that same day. Hudson then, before the 90-day period expired, filed a timely petition for an extension of time within which to file the record. And he subsequently filed the record of the proceedings within the period allowed by a second extension of time.¹¹

Accordingly, we deny the Motion to Dismiss or in the Alternative to Affirm Judgment.

Sullivan, J., concurs.

Buchanan, C.J., dissents with opinion.

1 . Prior to the adoption of the Indiana Rules of Procedure, proceedings supplemental to execution were statutory in nature. See, IC 34-1-44-1 et seq. (Burns Code Ed. 1973). This case does not require us to decide whether the intent of Trial Rule 69(E) was to overrule the statutory remedy or to retain it as a separate option. But see State v. Bridenhager (1972), 257 Ind. 699, 279 N.E.2d 794; compare 4 Harvey & Townsend, Indiana Practice, p. 475.

2 . It is interesting to observe that Hudson altered his appellate procedures between the time of the September 9,1976 judgment and the order book entry of December 20, 1976. Hudson filed a motion to correct errors within 60 days of the September 9,1976 judgment. However, he did not file a motion to correct errors directed to the December 20, 1976 entry. Thereafter, when Hudson filed the record of proceedings, he included both a certified copy of his motion to correct errors filed October 27,1976 and an assignment of errors under AP. 7.2. Hudson apparently was proceeding under the belief that (1) he had 90 days from the trial court’s ruling on the motion to correct errors or (2) he had 90 days from the entry of December 20, 1976 in which to file his record.

3 . However, TR. 54(B) permits a trial court to enter “final judgment’ in a multiple claim cause or a cause involving multiple parties upon less than all claims or as to less than all parties if the trial court makes, in writing, two express determinations:

(a) There is no reason for delay, and

(b) An express direction for entry of judgment.

If these determinations are made, the judgment so entered becomes final and appealable. Without these determinations, the order is interlocutory and not appealable unless expressly authorized. Therefore, the traditional definition of a final judgment is modified by TR. 54(B) to the extent its provisions are applicable.

4 . Indiana Supreme Court Rule 2-2, in effect at the time the Mitchell case was decided, required all appeals to be filed within 90 days from judgment or ruling on the Motion for New Trial “unless the statute under which the appeal or review is taken fixes a shorter time, in which latter event the statute shall control.” The statute, Burns Ind. Ann. Stat. §2-3219, which had been in effect since 1921, required then, as does Ind. Rules of Procedure, Appellate Rule 3(B) now, that appeals from interlocutory orders be brought within 30 days of the ruling. The Appellant in Mitchell did not perfect an appeal within 30 days of the order in proceedings supplemental. To the contrary, he filed a Motion for a New Trial and only some 43 days after the ruling thereon did he perfect an appeal by a filing of the record.

5 . In Pounds, citation to 1881 Revised Statutes, Sec. 646, was in error. The applicable section of the 1881 Acts, Ch. 38 was actually Sec. 655.

6 . The Supreme Court also disposed of appellee’s additional argument: We cannot follow his argument that because the trial court retains jurisdiction to enforce the payment by proceedings for contempt the order is in fieri, does not become final until it is complied with or enforced and therefore must be interlocutory. The order and its enforcement are two separate things, the former judicial, the latter executive. Whether the latter is by contempt proceedings or by the means ordinarily used for the collection of judgments is immaterial.

7 . We would note that use of the word “ancillary” to describe the order in a proceedings supplemental is confusing. In one sense, “ancillary” is commonly used to describe the remedies available under TR. 64 for the purpose of securing satisfaction of a judgment ultimately tobe entered, i.e., remedies prior to judgment, such as pre-trial remedies or remedies during trial pending outcome of the case. Such proceedings are indeed interlocutory in nature because issues essential to the action have not been resolved. Yet, with regard to the time limitations for appeal which are determined on the basis of whether the order of judgment is interlocutory or final, the term “ancillary” is not the equivalent of either.

8 . Proposed TR. 59(G), as it appeared in the proposed final draft of August 6, 1968, provided that a motion to correct errors was not a condition precedent to an appeal in any case.

9 . The optional motion to correct errors is likewise available in the case of an appeal from an interlocutory order or an order appointing or refusing to appoint a receiver. We observe, however, that its use is fraught with danger due to the provision of Appellate Rule 3(B) which requires that the record be filed within 30 days of the interlocutory order or any such shorter time that may be fixed by statute. This time limitation, unlike the 90 day time frame for final judgments, is not altered by the filing of an optional motion to correct errors.

10 . There is no explicit language in the Rules to this effect. Appellate Rule 7.2(A)(1)(b) requires, in interlocutory appeals, the inclusion of an assignment of errors in the record. Appellate Rule 7.2(A)(1)(a) requires the inclusion of “the motion to correct errors filed with the trial court" (emphasis added). In such cases, “(n)o assignment of error other than the motion to correct errors shall be included in the record.” Subsection (A)(1)(a) obviously is not concerned with an appeal from a final order in a proceedings supplemental, where no motion to correct errors has been filed with the trial court. In this situation, we conclude that a fair reading of the Rule would indicate, and indeed the only alternative is to require an assignment of errors. The Rule provides that the record shall include a certified copy of either the motion to correct errors or an assignment of error.

11 . Because of our disposition of this Motion to Dismiss or Affirm, we do not address Hudson’s contention that he is appealing the December 20, 1976 entry. We direct the parties’ attention to the decision of the Supreme Court in P-M Gas & Wash Co., Inc. v. Smith (1978), 268 Ind. 297, 375 N.E.2d 592, handed down during the pendency of this motion.