Logal v. Cruse

338 N.E.2d 309, 167 Ind. App. 160, 1975 Ind. App. LEXIS 1417

• Court: Indiana Court of Appeals
• Decided: December 8, 1975
• Docket: 3-675A106
• Status: Published

Opinions

Hoffman, J.

— Defendants-appellees William C. Cruse, Billy D. Martin and Randall Czekaj have filed separate motions to dismiss this appeal, alleging that the trial court was without jurisdiction to enter a judgment. Plaintiff-appellant Rodney A. Logal has not responded to such motions.

The record of this cause discloses that on November 9, 1973, the Porter Superior Court dismissed an action between these parties for the plaintiff Logal’s failure to comply with certain sanctions previously ordered by such court. An appeal was perfected from that judgment and is presently pending in this court as Cause No. 3-773A120.

After such appeal was perfected to this court, Logal obtained new counsel who filed in the trial court a “Petition to Reinstate” such action pursuant to Ind. Rules of Procedure, Trial Rule 60(B). Such petition was denied. Logal then filed a motion to correct errors directed to the denial of such petition. This motion wás overruled and the present appeal was perfected.

Appellees contend that after the first appeal was perfected by the filing of the record of the proceedings in this court, the trial court lost its general jurisdiction over the cause, and hád no jurisdiction to entertain Logal’s “Petition to Reinstate.” A long line of precedential case law is supportive of this position.

. In Westfall v. Wait (1903), 161 Ind. 449, at 451, 68 N.E. 1009, at 1010, our Supreme Court stated:

“It seems to be thoroughly settled by the decisions of the American courts that an appeal from a final judgment rendered generally upon the issues in a cause, when properly perfected, carries the whole case embraced within the final adjudication absolutely from the jurisdiction of the trial court to the appellate tribunal. Elliott, App. Proc., § 541. The rule is tersely stated in the text of 2 Ency. PI. & Pr., 327, thus: 'Where an appeal has been perfected, the jurisdiction of the appellate court over the subject-matter and parties attaches, and the trial court has no power to render any further decision affecting the rights of the parties in the cause until it is remanded.’ Citing many authorities. In State, ex rel. v. Kolsem, 130 Ind. 435, 14 L.R.A. 566, this court used the following language: ‘If the appellees had perfected their appeal, there could be no doubt, that the case would have been entirely removed from the jurisdiction of the trial court.’

“At the bottom of the rule is the infeasibility of two courts having authority over the same case at the same time. ***.” Similarly, see: Lake County Department, etc. v. Roth (1961), 241 Ind. 603, 174 N.E.2d 335; State v. Gurecki (1954), 233 Ind. 383, 119 N.E.2d 895; Farmers L. & T. v. Manning et al. (1968), 142 Ind. App. 519, 236 N.E.2d 52.; Kragulac et al. v. Marich et al. (1967), (on petition for rehearing), 142 Ind. App. 529, 549, 236 N.E.2d 58 (transferdenied).

This rule was recently reaffirmed by our Supreme Court in Bright v. State (1972), 259 Ind. 495, 289 N.E.2d 128. In Bright, the appellant had filed an appeal from his conviction, and during the pendency of such appeal returned to the trial court to file a petition for post-conviction relief. Upon the denial of such petition, he filed a second appeal.- Our Supreme Court dismissed such subsequent appeal, stating:

' “At the time the appellant filed his motion to correct errors and transcript of record in this Court in the first appeal, the entire cause was removed from the trial court to this Court thereby depriving the trial court of any further jurisdiction over the action. 2 I.L.E. Appeals § 231 (1957). We, therefore, hold the appellant was premature in filing his verified motion for post-conviction remedy in the trial court at a time when the same cause of action was pending in this Court on appeal.” (At 496 of 259 Ind., at 129 of 289 N.E.2d.)

Similarly, in the case at bar when Logal perfected his appeal from the'original judgment of dismissal by filing the record of the proceedings with the clerk of this court, the trial court lost its' general jurisdiction of the case.- Thus, the purported proceedings on Logal’s “Petition to Reinstate” in’'the trial court were a nullity, and this attempted áppeal must be dismissed.

The motions to dismiss heretofore filed in this cause are sustained, and this appeal is dismissed.

Appeal dismissed.

Garrard, J., concurs with opinion; Staton, P.J. dissents with opinion.