Opinion
No. 1178S250.
Filed November 3, 1978.
APPEAL — Denial of Motion to Correct Errors — Where Special Findings of Fact did not Alter Original Decision — Second Motion to Correct Errors not Necessary. — Where appellants filed a motion to correct errors which the trial court denied in all respects except that the court granted the prayer for special findings of fact which were not made in the original, where the detailed findings of fact expounded upon, but did not alter, the substance of the original decision, and where the errors to be presented on appeal were stated in the original motion to correct errors and the basis for them was not affected by the subsequent entry of findings of fact, a second motion to correct errors was not necessary pursuant to the decision of P-M Gas and Wash Co. v. Smith, 268 Ind. 297.
On Petition to Transfer.
Transfer granted from decision of Court of Appeals which had dismissed the appeal where a second motion to correct errors was not filed where special findings of fact were made which did not alter the original decision.
Remanded to Court of Appeals for decision on merits.
William E. Harris, Torborg, Miller, Moss, Harris Sowers, of Fort Wayne, for appellants.
James R. Solomon, Hoffman, Moppert, Solomon, Miller Thompson, of Fort Wayne, for appellee.
This case is before us on the petition to transfer of Ronald C. Bridge, et al., appellants, who are all landowners in the City of Fort Wayne. The only issue involved is the failure to file a second motion to correct errors and, thus, this case is governed by our recent holding in P-M Gas Wash Co., Inc. v. Ronald Smith, b/n/f Clara Smith and Richard Smith, (1978) 268 Ind. 297, 375 N.E.2d 592.
The Fort Wayne Board of Zoning Appeals granted Cecil Excavating a special use permit for sand and gravel extraction. Several surrounding landowners (appellants) contested this and appealed the Board's decision to the trial court. That court upheld the Board's action. Appellants filed a motion to correct errors which the trial court denied in all respects except that the court granted the prayer for special findings of fact which were not made in the original judgment. The detailed findings of fact expanded upon, but did not alter, the substance of the original decision. The errors to be presented on appeal were stated in the original motion to correct errors and the basis for them was not affected by the subsequent entry of findings of fact. No second motion to correct errors was filed.
On appeal, the Court of Appeals applied State v. Deprez, (1973) 260 Ind. 413, 296 N.E.2d 120, and dismissed the appeal because a second motion to correct errors had not been filed. The Deprez case relied on by the Court of Appeals has been overruled by this Court and the now controlling authority of P-M Gas Wash Co., Inc., supra, requires that the petition for transfer be granted.
We therefore grant transfer and remand to the Court of Appeals for an opinion on the merits.
DeBruler, Prentice and Pivarnik, JJ., concur; Givan, C.J., dissents.
NOTE. — Reported at 381 N.E.2d 1060.