P-M Gass&sWash Co., Inc. v. Smith

Full title: P-M GASs&sWASH COMPANY, INC., an Indiana Corporation, Appellant and…

Court: Court of Appeals of Indiana, Second District

Date published: Jul 29, 1976

352 N.E.2d 91 (Ind. Ct. App. 1976)

Opinion

352 N.E.2d 91 (Ind.App. 2 Dist. 1976) P-M GASs&sWASH COMPANY, INC., an Indiana Corporation, Appellant and Cross-Appellee, v. Ronald SMITH b/n/f Clara Smith and Richard Smith, Appellees and Cross-Appellants. No. 2-1275A357. Court of Appeals of Indiana, Second District. July 29, 1976

        Opinion Super seded, see 375 N.E.2d 592.

       Richard S. Ewing, Stewart, Irwin, Gilliom, Fullers&sMeyer, Indianapolis, for appellant.

       Daniel F. Cummings, Cummings and Emery, Indianapolis, for appellees.

       PER CURIAM.

       This cause is pending before the Court on the appellant's Petition to Dismiss Purported Cross-Appeal and Assignment of Errors Filed by the Appellees-Cross-Appellants and to Strike Portions of Appellees' Brief, and on the Appellees' Objections to Petition to Dismiss .

       The appellant's Motion to Dismiss Cross-Appeal alleges the assignment of cross errors was not timely filed and therefore the cross-appeal should be dismissed.

       Trial Rule 59(D), which provides for filing cross errors, reads as follows:

'(D) Motion to correct errors on affidavits--Opposing affidavits, cross-errors and other matters. When a motion to correct errors is based upon evidence outside the record, the cause must be sustained by affidavits showing the truth thereof served with the motion. The opposing party has fifteen (15) days after service of affidavits in which to serve opposing affidavits and fifteen (15) days after service of the motion in which to file cross-errors or in which to assert relevant matters relating to the kind of relief to be granted. The period for filing affidavits may be extended for an additional period not exceeding thirty (30) days for good cause shown or by written stipulation.'

       The appellees did not file their Assignment of Cross Errors within fifteen days after the service upon them of the appellant's Motion to Correct Errors. Instead, the appellees included their assignment of cross errors and cross-appeal as a part of their appellees' brief on the merits filed in this Court.

       The appellees urge us to construe that part of Rule TR. 59(D) pertaining to filing cross errors as to cause it to be applicable only in those instances in which the motion to correct errors is based on evidence outside the record. Specifically, appellees argue:

'. . . Trial Rule 59(D) requires that when a Motion to Correct Errors is filed upon evidence outside the record the opposing party has fifteen (15) days after service of the motion to file cross errors. The Motion to Correct Errors filed by the Defendant (Appellant) was not based on evidence outside the record nor was the original Motion to Correct Errors filed by the Plaintiffs. The fifteen (15) day limitation of Trial Rule 59(D) must be read in context with the entire rule and it refers only and specifically to a motion to correct errors filed on evidence outside the record. No part of Trial Rule 59(D) is applicable to either of the motions to correct errors filed in this case.'

       We can appreciate the appellees' construction of Rule TR. 59(D) but we do not agree with it. The title to that subsection and most of its content concerns the filing of affidavits to support the motion to correct errors when the motion is based on evidence outside the record. Positioned between the sentences concerning the filing and service of affidavits, is the provision for filing cross errors, and it clearly states that the opposing party has fifteen (15) days after service of the motion (to correct errors) within which to file cross errors. Reading the rule to require filing cross errors within fifteen days after service of the motion to correct errors, is consistent with the general rules that one must first present claimed error to the trial court before it can be considered on appeal, and that error cannot be raised for the first time on appeal.

       In Bobbitt, Indiana Appellate Practice and Procedure, Vol. 1, Chapter 52, Assignment of Cross Errors, § 4 at page 519, he states:

'The assignment of cross errors must be filed with the clerk of the trial court within fifteen (15) days after service of the motion to correct errors.'

       In Harvey, Indiana Practice, Vol. 4, at page 116, the Civil Code Study Commission comments on that portion of Rule TR. 59(D) being considered in this opinion are set out as follows:

'The opposing party may file cross errors, and may assert matters relating to the kind of relief to be granted within fifteen days from time motion is served.'

       We believe the appellees have misread the rule. We read the rule to require that, if assignments of cross error are to be filed, they must be filed within fifteen days after service of the motion to correct errors, regardless of whether the motion to correct errors is, or is not based on evidence outside the record. Since that is our interpretation of the rule, we hold that the appellees' assignments of cross errors in this case, raised for the first time in the appellees' brief on appeal, were not timely filed and must therefore be dismissed.

       The appellant's Petition to Dismiss Purported Cross-Appeal and Assignment of Errors Filed by Appellees and to strike those portions of the appellees' brief pertaining to the cross errors and cross-appeal is granted.

       Jurisdiction is retained for determination of the issues presented by the appeal of P-M Gas and Wash Company, Inc.