Kratkoczki v. Regan

381 N.E.2d 1077, 178 Ind. App. 184, 1978 Ind. App. LEXIS 1082

• Court: Indiana Court of Appeals
• Decided: October 31, 1978
• Docket: 3-176A16
• Status: Published

Opinions

Staton, J.

On January 25,1974, William J. Regan, Executor of the Estate of Charles Sarudy, Jr., filed a Petition for Instructions and Restraining Order in the Lake Superior Court, Room Four. The Petition alleged that the Estate was entitled to exclusive possession of a Certificate of Deposit with a face value of ten thousand dollars ($10,000.00). This Certificate was issued by the First Federal Savings and Loan Association of Gary in the names of the decedent and Steve Kratkoczki. The trial court issued a restraining order against Kratkoczki and First Federal on the above date preventing either from withdrawing the funds.

A hearing pursuant to the Executor’s Petition was held on April 5, 1974, in the Lake Superior Court, Probate Division, Room 3. At this time, both parties were directed to file proposed findings of fact and conclusions of law.

On May 21,1974, the trial court adopted the findings and conclusions submitted by the Executor. It ruled that the joint bank account which represented the proceeds of the Certificate of Deposit was not created with right of survivorship. The bank account was ordered to be divided between the parties according to the sources of the funds which had contributed to its creation. Kratkoczki was awarded $3,136.95 which had devolved from a joint account with right of survivorship previously held between himself and the decedent. The Estate received the remaining $6,973.55 (representing remaining principal plus accrued interest of $110.50) which had originated in a joint account with right of survivor-ship held by the decedent and his late mother.

Kratkoczki filed his Motion to Correct Errors and Motion for Relief from Judgment on July 23,1974. The Executor filed an Answer to these motions on August 6,1974, including a Motion to Dismiss. The latter alleged that Kratkoczki had failed to file his Motion to Correct Errors within sixty days after the entry of judgment as is required by Ind. Rules of Procedure, Trial Rule 59(C). On September 6,1974, the trial court overruled the Executor’s Motion to Dismiss and granted Kratkoczki’s Motion to Correct Errors. The trial court indicated that it had entered its previous judgment while under the erroneous impression that this case was before it on appeal. It then referred this matter to its Probate Commissioner for further action.

On May 13,1975, the trial court, through its Probate Commissioner and after the admission of additional evidence, declared the joint bank account to be a tenancy in common. It then ordered the account’s assets to be equally divided between the contesting parties. Kratkoczki filed his Motion to Correct Errors on July 11,1975. This was overruled on October 17, 1975.

The Executor now claims that Kratkoczki’s initial failure to file a timely Motion to Correct Errors barred the trial court from considering any of his contentions of error. We agree; we dismiss this appeal for lack of jurisdiction.

TR. 59(C) reads as follows:

“(C) When motion to correct errors must be filed. A motion to correct errors shall be filed not later than sixty [60] days after the entry of judgment.”

The trial court’s initial judgment in this case was entered on May 21,1974. Kratkoczki’s Motion to Correct Errors was filed in open court on July 23, 1974. This was sixty-three (63) days after the entry of judgment.

The implications of Kratkoczki’s failure to file a timely Motion to Correct Errors are discussed in Brunner v. Terman (1971), 150 Ind.App. 139, 148, 275 N.E.2d 553, 558-559:

“[I]t was incumbent upon appellee Terman to file his motion to correct errors within sixty days thereafter and a failure to do so waived the right to file them and barred his right to appeal his cause of action. He had filed his motion to correct errors on the sixty-first day.

“This late filing being jurisdictional, this court has no right or authority to consider any errors attempted to be raised in the untimely motion to correct errors.”

See also Murray v. Murray (1974), 160 Ind.App. 72, 309 N.E.2d 831; Gillian v. Brozovic (1975), 166 Ind.App. 682, 337 N.E.2d 152.

The effect of a judgment made without jurisdiction was considered in Lowery v. State Life Ins. Co. (1899), 153 Ind. 100, 102, 54 N.E. 442, 443:

“A departure from the limits and terms of jurisdiction is usurpation of power that imparts no validity whatever to its judgments and decrees. Works, § 10, p. 28, and authorities cited. Hence, we have the generally accepted rule that, when a court proceeds without jurisdiction of the subject-matter, its judgment is wholly void; and, adopting as our own the words of the court in Sheldon v. Newton, 3 Ohio St., 494, on page 498, ‘It is equally unimportant how technically correct, and precisely certain, in point of form, its record may appear; its judgment is void to every intent, and for every purpose, and must be so declared by every court in which it is presented.’ ”

The trial court’s granting of Kratkoczki’s first Motion to Correct Errors is, therefore, null and void. Any subsequent actions predicated on this ruling are tainted by its nullity and are similarly without effect. We are, hence, without jurisdiction to review Kratkoczki’s second Motion to Correct Errors since it, too, lacks the force of law.

“This Court has the duty to determine its jurisdiction over matters presented to it. Whether a jurisdictional defect is raised by a party or discovered by the Court and acted upon sua sponte, is of no consequence.” (Footnote omitted).

Cohen v. Indianapolis Machinery Co., Inc. (1976), 167 Ind.App. 596, 339 N.E.2d 612, 613.

“And the duty is not affected by the acquiescence or agreement of the parties to submit to the jurisdiction, since jurisdiction that cannot be acquired without consent cannot be bestowed with it. . . .” (Citations omitted).

Lowery v. State Life Ins. Co., supra, 153 Ind. at 103, 54 N.E. at 443.

We therefore dismiss Kratkoczki’s appeal for lack of jurisdiction. This case is remanded to the Lake Superior Court with instructions to vacate the judgment from which this appeal was taken and to reinstate the original judgment made in this matter.

We dismiss.

Buchanan, C.J., (by designation), concurs;

Garrard, P.J., dissents with opinion.