Opinion
Respondent appealed from ruling by the Superior Court, Knox County, Sidney Gelb and Edward C. Theobald, JJ., granting first motion to correct errors filed by petitioner and ordering a new trial. The Court of Appeals, Lowdermilk, J., held that second motion to correct errors filed by respondent, who was aggrieved by grant of first motion to correct errors, in no way extended 30-day time limitation for filing of praecipe to initiate appeal from grant of first motion, and, accordingly, praecipe filed by respondent more than 30 days after grant of first motion was untimely.
Judge Gelb presided at trial and ruled on the motion to correct errors filed by B. J. S. Judge Theobald (successor Judge) ruled on the motion to correct errors filed by T. S. and certified the transcript of evidence.
Curtis V. Kimmell, L. Edward Cummings, Kimmell, Funks&sCummings, Vincennes, for respondent-appellant.
Jeffrey B. Kolb, Emison, Emisons&sDoolittle, Vincennes, for petitioner-appellee.
LOWDERMILK, Judge.
STATEMENT OF THE CASE
Respondent-appellant T. S. appeals from the trial court's ruling on January 5, 1977, granting the motion to correct errors filed by petitioner-appellee B. J. S. and ordering a new trial.
STATEMENT OF THE FACTS
The facts necessary for disposition of this appeal are as follows: B. J. S. filed her petition November 26, 1973, seeking to have T. S. adjudicated the father of her child born October 12, 1973. After hearing testimony, the trial court entered judgment against B. J. S. B. J. S. filed her motion to correct errors March 2, 1976, and T. S. filed a response to that motion March 17, 1976.
The trial court granted the motion to correct errors January 5, 1977, and ordered a new trial. T. S. filed a motion to correct errors March 4, 1977, alleging that the trial court erred in granting the motion to correct errors and in ordering a new trial. On March 21, 1977, the trial court overruled the motion to correct errors filed by T. S. T. S. filed his praecipe April 13, 1977, and filed the record with the Court of Appeals June 15, 1977.
ISSUE
In this opinion we reach one issue: Did T. S. comply with procedural requirements for initiating his appeal?
We dismiss the appeal.
DISCUSSION AND DECISION
The trial court granted the motion to correct errors filed by B. J. S. and ordered a new trial. T. S. filed a motion to correct errors fifty-eight days later. After the trial court overruled his motion to correct errors, T. S. filed a praecipe.
B. J. S. argues that no motion to correct errors was proper after the trial court granted her motion to correct errors and ordered a new trial. She contends that any praecipe filed by T. S. was due within thirty days after the trial court granted her motion to correct errors. T. S. has filed no reply brief. Therefore, we must respond to this argument presented in the brief of B. J. S. without having benefit of any argument from T. S. on the issue.
Ind. Rules of Procedure, Appellate Rule 4(A) provides, in part:
". . . Appeals may be taken by either party from all final judgments of Circuit, Superior, Probate, Criminal, Juvenile, County, and where provided by statute for Municipal Courts. A ruling or order by the trial court granting or denying a motion to correct errors shall be deemed a final judgment, and an appeal may be taken therefrom. . . ."
In State v. Deprez (1973), 260 Ind. 413, 420, 296 N.E.2d 120, 124, the Indiana Supreme Court was called upon to interpret Rule AP. 4. The trial court had entered judgment dismissing the State's condemnation action. Although the trial court denied the State's motion to correct errors, the trial court amended its judgment of dismissal by filing certain Special Findings of Fact and Conclusions of Law. The State brought its appeal without filing a motion to correct errors directed to the amended judgment entry. The Supreme Court dismissed the appeal, and Chief Justice Arterburn explained the reason for the dismissal:
"First, there is the question in this instance of what constituted the final judgment referred to in Rule AP. 4. . . . If the trial court had simply either granted or denied that Motion to Correct Errors such step would have constituted the final judgment from which this appeal could have been taken without further ado. Rule AP. 4.
However, because of the insufficiency of the . . . (first) entry in the light of the attack made upon it by the State's Motion to Correct Errors, the trial court entered a completely new entry . . . constituting new findings of fact and a new judgment as authorized further by Rule TR. 59(E). This new entry for the first time set forth the reasons in fact and in law upon which the trial court's dismissal was based. If they were in error, then a Motion to Correct Errors was clearly necessary. Thus, the . . . (second) entry became the final judgment, to which a Motion to Correct Errors, referred to in Rule AP. 4, should have been filed." (Our emphasis) (Our inserts)
Judge Buchanan quoted from Deprez in his opinion for the Court of Appeals, Second District, in Davis v. Davis (1974), Ind.App., 306 N.E.2d 377, 380, and then wrote:
"Thus, the Supreme Court has interpreted Rule AP. 4(A) to mean that if a trial court grants or denies a motion to correct errors which is accompanied by a new entry or judgment consisting of additional findings, amendments, or other alterations of the prior judgment, the party aggrieved thereby must file a motion to correct errors addressed to the new entry which has become the final judgment from which appeal is taken. 1 With this interpretation we agree, not only because we are bound to do so, but because it logically stresses the need for specificity of alleged errors in the appeal process. The first sentence of Rule AP. 4(A) referring to appeals 'from all final judgments,' as well as the second sentence denominating a ruling on a motion to correct errors as a final judgment, is thus given force and effect."
At footnote numbered one, Judge Buchanan explained:
"We construe Deprez to imply that this additional motion to correct errors serves as the basis for computing the time intervals within which to initiate and submit an appeal. See Rules AP. 2(A) and AP. 3(B)."
We agree with these statements contained in Davis, supra.
In Easley v. Williams (1974), Ind.App., 314 N.E.2d 105, the trial court had granted plaintiff-appellee Williams' motion to correct errors and had ordered a new trial. Defendants-appellants Harmless filed no motion to correct errors before initiating their appeal. Williams filed a motion to dismiss the appeal for failure to file a motion to correct errors. The Court of Appeals, First District, denied the motion to dismiss and explained at 314 N.E.2d 105, 108:
"All of these previously discussed cases differ from the case now before us in that in each of those earlier cases, a new judgment resulted from the trial court's ruling on the original Motion to Correct Errors. However in this case, the court's ruling on the Motion to Correct Errors, abolished the original judgment by granting a new trial, and no new judgment resulted. Therefore, no subsequent Motion to Correct Errors was required."
In light of Rule AP. 4, second sentence, a more precise statement would be that no new judgment resulted on the issues which were initially considered at trial.
In Miller v. Mansfield (1975), Ind.App., 330 N.E.2d 113, 115, the trial court granted in part and overruled in part a motion to correct errors filed by plaintiffs-appellees Mansfield. The trial court set aside the verdict of the jury and ordered a new trial. Defendants-appellants Miller appealed from the granting of the Mansfields' motion to correct errors.
Relying principally upon State v. Deprez, supra; Davis v. Davis, supra, and Weber v. Penn-Harris-Madison School Corporation (1974), Ind.App., 317 N.E.2d 811, Judge Hoffman wrote for the Court of Appeals, Third District, in dismissing the appeal:
"In the case at bar, the trial court granted, in part, appellees' motion to correct errors. Under the provisions of Rule AP. 4(A), supra, such is deemed a final judgment. By operation, it had the effect of vacating the trial court's previous judgment which was entered on the verdict of the jury. Thus, we must conclude that the entry of judgment granting appellees' motion to correct errors and ordering a new trial creates a new judgment necessitating a subsequent motion to correct errors." (Original emphasis)
Judge Garrard dissented from the decision in Miller, and we quote from his dissenting opinion, 330 N.E.2d 113, 115-16:
"I dissent from what I deem to be the majority's blind application of the doctrine announced in State v. Deprez (1973), 260 Ind. 413, 296 N.E.2d 120, to the proceedings in this case.
When the trial court rules upon a TR. 59 motion it may amend findings already made or add new findings to correct an error or potential inadequacy perceived by the court. It may similarly alter, amend, modify or correct a judgment.
Where this is done, there is in reality a new judgment. Even where the change is in the findings and the previous judgment is re-entered, it is procedurally a new judgment for it is entered upon the findings. The procedural desirability of a new motion in such cases is logical. It eliminates continued pursuit of an assignment of error in the original motion which is no longer pertinent. It places before the trial court, and this court for review, assignments and specifications which depend upon or arise out of the amendments or modifications made by the court in its ruling on the first motion.
When, however, the court in response to the first motion simply orders a new trial, those reasons for another motion to correct errors do not exist. There is simply no new judgment. Furthermore, that the court may assign reasons for its reversal does not as a practical matter make a new motion desirable. The viable error, if present, has already been considered by the trial court and needs no further preservation or amplification to enable us to make a proper review. . . . " (Our emphasis)
We agree with both the conclusion and the reasoning expressed by Judge Garrard, as quoted above.
Rule AP. 4(A) describes the "ruling or order by the trial court granting or denying a motion to correct errors" as a "final judgment," and states that "an appeal may be taken therefrom." In State v. Deprez, supra, our Supreme Court explains that the appeal from the final judgment resulting from the granting or denying of the motion to correct errors may be taken "without further ado."
While the Third District of the Court of Appeals finds need for a motion to correct errors when the granting of the first motion is joined with an order for a new trial, we do not agree. No new entry consisting of additional findings, amendments, or other alterations of the prior judgment comes into existence in a case such as the one at bar, and no purpose is served by the filing of a second motion to correct errors. As Judge Garrard explained: "The viable error, if present, has already been considered by the trial court and needs no further preservation or amplification to enable us to make a proper review."
Rule AP. 2 of the Ind. Rules of Procedure provides that an appeal is initiated by filing a praecipe with the clerk of the trial court within thirty days of the trial court's ruling on the motion to correct errors "or the right to appeal will be forfeited."
The trial court ruled by granting the motion to correct errors filed by B. J. S. T. S. filed a praecipe ninety-eight days later. Although T. S. filed and the trial court denied an unauthorized motion to correct errors in the interim, we hold that the second motion to correct errors in no way extended the time limitation imposed by Rule AP. 2 for filing of a praecipe to initiate appeal from the granting of B. J. S.'s motion to correct errors.
Appeal dismissed.
ROBERTSON, C. J., and LYBROOK, J., concur.