Opinion
Opinion Superseded 283 N.E.2d 307.
Page 308
Howard J. DeTrude, Jr., Kightlinger, Young, Grays&sHudson, Mark W. Gray, John T. Lorenz, Indianapolis, for appellant.
Scott Ging, Indianapolis, for appellee.
LOWDERMILK, Judge.
This case comes before the Appellate Court based on the proceedings in two successive suits brought in the trial court. The appellee, Jennings, plaintiff below, brought suit in the first trial, alleging that he was the duly elected constable of Pike Township, Marion County, Indiana, and that as such duly elected constable he was deprived of his functions and obligations when the duly elected Justice of the Peace of Pike Township, Marion County, Indiana (Norman A. Bowman) appointed special constables to perform duties that the plaintiff was ready, willing and able to perform as such constable. The plaintiff brought suit against the Justice of the Peace for the moneys received by the specially appointed constables, alleging that he had been damaged in that amount which the special constables had received.
There was a default judgment entered for the plaintiff-appellee. Subsequently, appellee brought this action against the appellant, American States Insurance Company, which was the surety on the bond which the Justice of the Peace had given the State of Indiana. During this proceeding appellee moved for a summary judgment which was granted, and the final judgment was entered on September 4, 1969.
Pursuant to the granting of the summary judgment the appellant filed a motion for new trial, which motion was overruled on October 4, 1969.
The appellant now alleges that the trial court erred in overruling its motion for a new trial and sets out as its assignment of errors before this court that: (1) the court erred in sustaining plaintiff's motion for summary judgment against American States Insurance Company as to liability; (2) the court erred in admitting into evidence the judgment in Cause S63-3383; and (3) the decision of the court is not sustained by sufficient evidence and is contrary to law.
The appellant has now thus appealed from a summary judgment but has done so asking this court to reverse the trial court because it erred in overruling a motion for a new trial. This argument is untenable because a summary judgment is not a trial and thus the trial court did not err in overruling a motion for a new trial. The appellant had the remedy of appeal when the trial court entered its summary judgment on September 4, 1969. Ninety days from September 4, 1969, would fall on December 3, 1969, and appellants did not file their transcript until February 26, 1970. This summary judgment was a final judgment and the appellant had ninety days from its rendition to file its transcript in this court; its failure to timely file its transcript leaves this court without jurisdiction to hear the appeal.
However, not only did this time elapse before the appellant filed anything in this court but it was not until January 7, 1970, before the appellant filed a petition for extension of time to file transcript. Pursuant to this petition for extension of time the Appellate Court inadvertently granted the petitioner until February 26, 1970. The appellant's petition for extension of time contends that the overruling of the motion for a new trial was on October 14, 1969. This was an apparent error, as the transcript and the briefs reveal that the overruling of the motion for a new trial was on October 4, 1969, and the record is binding. (Supreme Court Rule 2-16.)
In the case of Dawson, et al. v. Wright, Mayor, etc., et al. (1955), 234 Ind. 626, 129 N.E.2d 796, the Supreme Court held that:
'Since the judgment in this appeal was entered without any trial, the motion for new trial presented nothing and could not extend the time for perfecting an appeal. Under Rule 2-2 the time for perfecting the appeal by filing a transcript and assignment of errors with the clerk of this court had expired before we made an order which did not authorize a belated appeal, but only assumed appellants' position on the record was correct, and granted a regular extension pursuant to the rule. * * * A failure to perfect an appeal from a final judgment within ninety days, or within time properly extended under Rule 2-2, fails to give this court jurisdiction of the appeal and it should be dismissed. State Board of Tax Commissioners v. Stanley, 1952, 231 Ind. 338, 341, 108 N.E.2d 624; Stocker v. City of Hammond, (1938), 214 Ind. 628, 16 N.E.2d 874; Brady v. Garrison, (1912), 178 Ind. 459, 460, 99 N.E. 738; Vail v. Page, (1911), 175 Ind. 126, 131, 93 N.E. 705. 'Appeal dismissed.'
The Appellate Court has also held the same result in a situation such as this in the case of Sacks v. Winkler (1967), 141 Ind.App. 13, 227 N.E.2d 177:
'Finally, appellant alleges we failed to consider in our opinion the fact that the time for filing the transcript and assignment of errors had been extended by this court upon the petition of appellant. It appears from the record that on December 8, 1965, and on March 10, 1966, this court inadvertently granted appellant's extensions of time to file the transcript and assignment of errors. This, however, does not preclude a dismissal.' (Our emphasis.)
This case was tried prior to the new Rules of Indiana Procedure and the question of how to appeal a summary judgment had been well resolved and was binding at the time the appellant received a summary judgment against it. In the case of Aldridge v. Aldridge (1968), 142 Ind.App. 289, 233 N.E.2d 781, the Appellate Court overruled a prior case allowing the filing of a motion for new trial by saying that:
'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 A.D. 160, 63 N.Y.S.2d 545; Weisberg v. Perl (1954), Fla., 73 So.2d 56; Otteman v. Interstate Fire and Casualty Company (1960), 171 Neb. 148, 105 N.W.2d 583; Parmelee v. Chicago Eye Shield Co. (1946), 8 Cir., 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.'
This court said, in Lows v. Warfield (1970), Ind.App., 259 N.E.2d 107:
'This Court, in the case of Kapusta v. DePuy Mfg. Co., Inc. (1968), 141 Ind.App. 479, 229 N.E.2d 828, in considering a motion to dismiss based on the appellant's having filed a motion for new trial after the entry of summary judgment against him, held that a motion for new trial was properly taken and denied the motion to dismiss.
'Thereafter, in the case of Aldridge v. Aldridge (1968), (142) Ind.App. (289), 233 N.E.2d 781, this Court reversed the position it had previously taken in Kapusta, supra, and held that a motion for new trial was improper, as the summary judgment proceeding is not a trial. The appellant in Aldridge sought transfer to the Supreme Court, which was denied.' (Our emphasis.)
the Aldridge case was binding on the trial and appeal of the appellant. The summary judgment was a final judgment (Jose v. Indiana National Bank, etc., et al. (1966), 139 Ind.App. 272, 276, 218 N.E.2d 165), and from that summary judgment the appellant had ninety days to perfect his appeal in compliance with appellate practice as it was at that time. The appellant not only failed to timely perfect its appeal, on or before December 3, 1969, but it also failed to timely ask for an extension of time to file its appeal from the summary judgment. Rather, it attempted to bring an appeal under a motion for a new trial.
The fact that this court inadvertently granted an erroneous and untimely petition for extension of time to file their appeal is of no consequence to the appellant, as set forth in the Dawson case and Sacks case, supra. Since there had not been a trial, and since the appellant did not timely appeal its summary judgment this case is hereby dismissed.
In the future, and under all cases that are governed by the new Indiana Rules of Procedure (which this case is not) the proper motion to file when there is a summary judgment rendered against a party is a motion to correct errors.
This appeal is hereby dismissed.
SULLIVAN, P. J. and BUCHANAN and ROBERTSON, JJ., concur.