Indiana Law Review


1974] SURVEY—CIVIL PROCEDURE 59

tion. Under this construction, the indemnification insurance pro-
vision would be no more harmful to the public interest than is
automobile liability insurance.

IV. Civil Procedure and Jurisdiction

William F. Harvey*

The following survey of Indiana cases is intended as an over-
view of significant developments in the area of civil procedure and
jurisdiction during the judicial term extending from May, 1973,
through May, 1974. Because the discussion is synoptic in nature,
it does not purport to provide either exhaustive coverage or exten-

sive analysis of the cases.

A. Jurisdiction and Service of Process

Indiana's long-arm statute 1 has been the subject of interpreta-

tion this past year in the federal courts. In Valdez v. Ford, Bacon
& Davis, Texas, Inc.* Judge Sharp, in a memorandum opinion,
espoused a liberal construction of the scope of Trial Rule 4.4. In

reviewing historical precedents and scholarly exegeses of the rule,
he found that

:

Indiana Trial Rule 4.4 is intended to extend personal juris-

diction of courts sitting in this State, including this one

in this case, to the limits permitted under the due process

clause of the Fourteenth Amendment.3

The question of the scope of Trial Rule 4.4 arose on the motion of
Texas Tank, Inc., one of the defendants, to dismiss under Federal
Rule of Civil Procedure 12(b) (2) for lack of jurisdiction over the
person. In connection with this motion, Texas Tank asserted that
the service of process made upon it by certified mail to its office in
Dallas, Texas, was impermissible under Federal Rule of Civil Pro-
cedure 4 and could only be allowed by incorporating into the fed-
eral rule the service of process procedures of Indiana, particularly

Trial Rule 4.4.

*Dean, Indiana University Indianapolis Law School. A.B., University of
Missouri, 1954; J.D., Georgetown University, 1959; LL.M., Georgetown Uni-
versity, 1961.

The author wishes to extend his appreciation to Susan B. Tabler for her
assistance in the preparation of this discussion.

'Ind. R. Tr. P. 4.4.
262 F.R.D. 7 (N.D. Ind. 1974).
3Id. at 14.



60 INDIANA LAW REVIEW [Vol. 8:59

The motion to dismiss was denied on the facts alleged in the
complaint. The diversity suit, based on products liability stemming
from an explosion of a sulphur recovery unit in Indiana, named as
defendants the out-of-state manufacturer, designers, suppliers, and
vendors of the unit. The court suggested that jurisdiction was
proper under liberal interpretations of Trial Rule 4.4(A) (1), (3),
and (4) and that, regardless of the theory applied, the necessary
"minimum contacts" with Indiana were shown.4 Finding Trial
Rule 4.4 sufficiently encompassing to uphold Indiana's interest

in the application of its laws to permit recovery for injuries in-

flicted within its borders, the court sustained jurisdiction over the

protesting defendant.

In the case of Warner Press, Inc. v. Warner Books, Inc.,5 Chief
Judge Steckler of the United States District Court for the Southern
District of Indiana expanded the concept of "causing harm" under
Trial Rule 4.4(A) (3) to include the sale of publications infringing

the trademark laws. The suit for trademark infringement and un-
fair competition arose from the sale and distribution in Indiana of
the allegedly infringing publications by the defendant's independent
contractors. The defendant moved to dismiss for lack of jurisdic-
tion over the person and for improper federal venue. The court
denied the motion, holding that, even though all the publications

were sold to an independent contractor in another state and the in-
dependent contractor was in turn responsible for the distribution of
the publications in Indiana, the court had jurisdiction pursuant to

the "causing harm" concept of Trial Rule 4.4(A) (3) and therefore
the non-resident publisher was amenable to service. Thus, accord-
ing to the opinion, it was immaterial that the alleged tortious act
of the defendant was committed or had occurred outside the state
of Indiana. For the purposes of the motion, it was sufficient that
the infringing sale caused harm within this jurisdiction.

The concept of "doing business" was also a focus of discussion
in the Warner case. The district court stated that, since the adop-
tion of Trial Rule 4.4, it is no longer necessary for a foreign corpo-

ration to do business in Indiana before it becomes amenable to suit.
6

However, under the federal rules, venue is properly laid in any

district in which a corporation is doing business.
7 The court found

that, even though for the purposes of affording jurisdiction the

defendant was not doing business in Indiana, nevertheless, for

venue purposes a corporation found amenable to service of process

in a district should also be held to be doing business in that district.

"See International Shoe Co. v. Washington, 326 U.S. 310 (1945).
5 366 F. Supp. 187 (S.D. Ind. 1973).
6Byrd v. Whitestone Publications, Inc., 27 Ind. Dec. 619 (S.D. Ind. 1971).
728 U.S.C. § 1391(c) (1970).



1974] SURVEY—CIVIL PROCEDURE 61

Thus, the court held that the fact that the defendant company relied
upon the services of an independent contractor, while precluding
jurisdiction under Trial Rule 4.4(A) (1), did not prevent a finding
that the company was "doing business" within the meaning of the
federal venue statute.

In Podgorny v. Great Central Insurance Co.,5 the Indiana
Court of Appeals upheld the right to attack collaterally a judgment
rendered in another state on the ground that the court lacked juris-

diction over the person. The plaintiff-appellee sought to enforce in
Indiana a previous default judgment obtained in Illinois against

the appellant, an Indiana resident. Both parties moved for sum-
mary judgment in the Indiana proceeding, the appellant contending
that the Illinois decision was void for the reason that he was never
served with process. In support of his motion for summary judg-
ment, appellant filed an affidavit asserting that the first notice he

received of the action was upon receipt of summons in the Indiana
suit and that he had no personal knowledge of the proceedings until

after entry of judgment in the Illinois suit. The Indiana trial court

denied appellant's motion for summary judgment and granted the
motion of plaintiff-appellee.

In reversing, the court of appeals held that summary judgment
was improper since the motions for summary judgment and the
documents filed in support thereof revealed the existence of a genu-

ine issue as to whether the provisions of the Illinois rules for sub-

stituted service had been satisfied. The court noted that, if appel-
lant's affidavit were taken as true and all doubts resolved in his

favor, the presumption of validity attaching to judgments of

sister states was insufficient to carry the case against appellant

:

His lack of actual notice then supports an inference that

the provisions for substituted service were not properly

complied with, since the whole concept of substituted

service constituting personal rather than constructive

service, is that if the provisions for substituted service

are met, the party is so reasonably likely to receive actual

notice that the requirements of due process are fulfilled.
9

Finally, two recent cases involving widely diverse circum-

stances dealt with the trial court's retention of jurisdiction over the

case. In Smith v. Indiana State Board of Health,' a suit was

brought seeking an injunction to prevent a rock festival. The de-

fendants filed a motion for a change of judge, which motion was

granted. Later on the same day, the plaintiffs presented a petition

for a temporary restraining order which the same judge also

e311 N.E.2d 640 (Ind. Ct. App. 1974)

.

9Id. at 648.
lo303 N.E.2d 50 (Ind. Ct. App. 1973).



62 INDIANA LAW REVIEW [Vol. 8:59

granted. The issue raised on appeal was whether the judge, who
had previously granted a motion for change of judge, had the
authority to grant the temporary restraining order.

The court of appeals held that jurisdiction of the case was
retained by the judge for emergency matters, even though a change
of judge had been granted. The court observed that if the law were
otherwise it would contravene policy considerations as well as rul-
ing precedent and would create a problematic situation wherein,
for a certain period of time, no court would have jurisdiction to act.
Hence, until a new judge qualified, jurisdiction remained in the
judge granting the venue change to issue temporary restraining
orders and, doubtless, other forms of relief necessitated by an emer-
gency."

The case of Farley v. Farley^ concerned the trial court's re-
tention of jurisdiction in a divorce proceeding after the final decree

of divorce had been rendered. The appeal attacked the judge's
authority to enter an order for the husband to pay suit money, said
order having been issued five months after the decree of divorce for
the wife was entered. The husband contended that, because the duty
of the husband to support his wife terminates upon entry of a final
divorce decree, an order for suit money must be included in the
divorce decree or be forever barred.

The court of appeals held that the post-facto granting of attor-
neys' fees and litigation expenses to the wife was proper under the
circumstances of the case. Alternative theories for supporting the

continuing jurisdiction of the trial court were proffered. First,

although a line of cases supports the proposition that courts are

without power to assess suit money after entry of a final divorce
decree,

13 an exception exists for obligations specified in the decree.

The court found that the divorce decree could be construed as re-
serving the question of suit money. Alternatively, the assessment

of suit money subsequent in time to the entry of the order severing
the marital relationship was deemed proper on the basis of the rule
of Alderson v. Aldersonu that the various aspects of a divorce de-

cree are divisible. Thus, the granting of a divorce decree does not

divest the court of jurisdiction to dispose of matters necessarily

"See also Gibson v. Miami Valley Milk Producers, Inc., 299 N.E.2d 631
(Ind. Ct. App. 1973), in which the court held that the filing of a Trial Rule
75 motion to transfer the case does not preclude all further action in the
forum where the action is pending. In contrast, the court of appeals noted,
the filing of a Trial Rule 76 motion for change of venue from judge or
county requires that the original court grant the motion and take no further
action in the matter.

,2300 N.E.2d 375 (Ind. Ct. App. 1973).
"E.g., O'Connor v. O'Connor, 253 Ind. 295, 253 N.E.2d 250 (1969).
M281 N.E.2d 82 (Ind. 1972).



1974] SURVEY—CIVIL PROCEDURE 63

incidental to the divorce proceeding. As a further reason for sus-
taining the ruling of the trial court, the court of appeals found that
the appellant had effectively waived his right to assert lack of juris-
diction as a ground for appeal because his motion to correct errors
failed to raise that issue with specificity. Although subject-matter
jurisdiction may be challenged at any time, jurisdiction over the
particular case, the court noted, must be objected to in a timely and
specific fashion.

B. Scope of the Trial Rules

During the past term, attention was directed to the applicabil-
ity of the Indiana Rules of Trial Procedure to administrative and
criminal proceedings. Although two recent decisions 15 reaffirmed
that the Trial Rules do not pertain to proceedings before adminis-

trative agencies,
16

the Indiana Supreme Court, in the case of City
of Mishawaka v. Stewart,w upheld the applicability of the Trial
Rules to appeals taken from trial court reviews of administrative
rulings. The Board of Public Works and Safety of the City of Mish-
awaka dismissed petitioner from the fire department following a
hearing on charges of misconduct. On judicial review, the decision
was reversed. The City then commenced the process of appeal from
that decision by filing with the trial court a motion to correct er-

rors. Following the overruling of the motion to correct errors by

the trial court, the City perfected an appeal to the court of appeals

where the holding below was reversed. 18 In his petition to transfer
to the supreme court, petitioner alleged that the City's appeal to the

courts of appeals was faulty because the City failed to file a petition

for rehearing as required by Indiana Code section 18-1-11-3
19

as a

prerequisite to perfecting such an appeal.

The supreme court upheld the decision of the court of appeals

to the effect that the Indiana Rules of Trial Procedure have super-

seded the statutory provisions requiring a petition for rehearing.

Thus, a motion to correct errors, rather than a petition for rehear-

ing, is the proper method of perfecting an appeal from a trial

court's review of board action.

15King v. City of Gary, 296 N.E.2d 429 (Ind. 1973) (Trial Rule 16 not

applicable to hearing before Police Civil Service Commission) ; Smith v. Re-

view Bd. of Ind. Emp. Sec. Div., 306 N.E.2d 140 (Ind. Ct. App. 1974) (Trial

Rule 5(E)(2) not applicable to proceeding before Review Board of Indiana

Employment Security Division).
16£ee Clary v. National Friction Prods., Inc., 290 N.E.2d 53 (Ind. 1972).

,7310 N.E.2d 65 (Ind. 1974).
,8City of Mishawaka v. Stewart, 291 N.E.2d 900 (Ind. Ct. App. 1973).
,9Ind. Code §18-1-11-3 (Ind. Ann. Stat. §48-6105, Burns Supp. 1974).



64 INDIANA LAW REVIEW [Vol. 8:59

In the case of Julkes v. State,
70

the issue was whether Trial
Rule 53.1 would be operative in regard to a petition for habeas cor-
pus and would thereby cause a trial judge to be relieved after thirty
days for failure to rule on the writ within that time. The supreme
court held that Trial Rule 53.1 is inapplicable to this situation. A
contrary holding, it was suggested, would in effect be a grant of
authority to the trial judge to delay as long as thirty days before

granting relief, thereby undermining the concept of speedy relief
fundamental to the habeas corpus remedy. The court declared that
the proper procedure to follow, when a writ of habeas corpus filed
in the trial court is not acted upon promptly, is to petition for a
writ of mandate from the supreme court.

Two recent cases recognized the inapplicability of certain trial
rules to criminal proceedings.

21
In Neeley v. State,22 the court of

appeals held that Trial Rule 52(A), requiring the trial court to
make findings of fact and conclusions of law at the request of a
party, does not pertain to criminal trials. By way of explication
of this holding, the court of appeals noted that, whereas the basis

of the trial court's decision in a civil matter may require clarifica-
tion because of complex issues and vague common law precedents,
the elements of a crime which must be satisfied at trial are set forth
by statute. Thus, findings of fact and conclusions of law are unnec-

essary and cannot be requested by a criminal defendant.

In State ex rel. Rodriguez v. Grant Circuit Court 23 the supreme

court held that Trial Rule 76 is not the appropriate means for re-
questing a change of venue from a judge in a criminal case. Accord-

ing to the decision, Criminal Rule 12 constitutes the exclusive pro-

vision governing such a procedure in criminal matters.
24 On the

other hand, in the case of Crockett v. Vigo County School Corp.
25

the supreme court reemphasized that the provisions of Trial Rule

79 for the appointment of a special judge pertain to all proceedings,

including criminal. This assertion was made in conjunction with
a discussion of Trial Rule 79 as it relates to Indiana Code section 34-

4-17-4 (b) and (c).26 The court held that the statutory provisions

20295 N.E.2d 619 (Ind. 1973).
21See Ind. Code § 35-1-49-1 (Ind. Ann. Stat. § 9-2407, Burns Supp. 1973),

which provides that "[i]n all criminal cases where no special provision has
been made in this act, the rules of pleading and practice in civil actions
shall govern, so far as applicable."

22297 N.E.2d 847 (Ind. Ct. App. 1973), aff'd, 305 N.E.2d 434 (Ind. 1974).
23309 N.E.2d 145 (Ind. 1974).
24Ind. R. Crim. P. 12.
25295 N.E.2d 621 (Ind. 1973).
26Ind. Code § 34-4-17-4 (b) & (c) (Burns 1973). These provisions, which

pertain to public lawsuits, provide in part:

(b) Change of Venue. A change of venue from the judge may be



1974] SURVEY—CIVIL PROCEDURE 65

were abrogated by Trial Rule 79 which provides the exclusive man-
ner for the selection of special judges in all causes, whether civil,
statutory, or criminal, and in any court except justice of the peace
and magistrate courts.

C. Pleadings and Pretrial Motions

Two recent cases concerned the adequacy of the complaint in
actions involving claims of fraud. In the case of Physicians Mutual
Insurance Co. v. Savage? 7 the court of appeals was presented with
an argument that the trial court should have granted a new trial
on the ground of unavoidable surprise. The defendant company
contended that it was unaware that a claim of fraud had been
raised against it because no allegation of fraud appeared in the com-

plaint. Nevertheless, during the course of the trial, reference was
made to fraudulent conduct on the part of the defendant and the
question of exemplary damages was raised. In addition, the trial
brief of plaintiff contained a discussion of fraud and exemplary

damages.

The defendant insurance company relied upon Trial Rule 9(B)
requiring fraud or mistake to be averred specifically. The court of
appeals stated that Trial Rule 9(B) should be read in conjunction

with Trial Rule 8, which requires only a "short and plain statement"

of the claim. The court held that not only did Trial Rule 8 qualify
Trial Rule 9(B) but that, moreover, the pleader was not required

to state in his complaint the theory upon which his claim was
based.

28
Finally, the court noted that the defendant failed to protect

itself from alleged surprise by moving for a continuance under

Trial Rule 15(B).

In the case of Sundstrand Corp. v. Standard Kollsman Indus-

tries, Inc.,
29

the United States Court of Appeals for the Seventh

Circuit considered whether a plaintiff should be limited at trial to

proof of only the specific acts of fraud alleged in the complaint.

The issue arose in the context of a securities suit in which there

was a general allegation of wrongdoing in violation of section 78j

of the Securities Exchange Act of 193430 and of the Rules and Reg-

ulations of the Securities and Exchange Commission. At trial, the

district court ruled that the general statement of wrongdoing con-

tained in a particular paragraph of the complaint was limited by

had but no change from the county will be permitted. . . .

(c) Special Judge. The rules regarding the selection of a special

judge in civil cases shall not apply ....
27296 N.E.2d 165 (Ind. Ct. App. 1973).
™See State v. Rankin, 294 N.E.2d 604 (Ind. 1973).
29488 F.2d 807 (7th Cir. 1973).
3015 U.S.C. §78j (1970).



66 INDIANA LAW REVIEW [Vol. 8:59

the specific claims of fraud made elsewhere in the complaint ; thus,
it refused to admit evidence in proof of fraud beyond the specific
acts alleged. The court of appeals held that this ruling was errone-
ous.

The court of appeals stated that pleading is not a procedural
game of skill and that, as has often been propounded, the important
function of pleading is to inform the opposing parties of the basis

of the claim. Further, the court held that, in deciding whether a
complaint has fairly notified a defendant of the matters sought to

be litigated, it was entirely proper to look beyond the pleadings to
the pretrial conduct and communication of the parties. In addition,
the fruits of discovery may provide important information relevant
to discerning the breadth of the complaint. Hence, according to the

court of appeals, the trial court erred in restricting the more gen-
eral allegation of the complaint to the specific acts enumerated else-

where in the complaint.
The Sundstrand opinion also involved another appeal based on

the same stock transaction. In the context of this appeal, the court
had occasion to consider the relationship of the burden of proof to
the requirement under Federal Rule of Civil Procedure 8 (c) that

the defendant affirmatively plead certain defenses in his answer.
31

Halfway through the trial, the counterclaim defendant asserted that
equitable relief was not available on the counterclaim because there
existed an adequate remedy at law. The trial court thereupon dis-
missed the counterclaim and, upon appeal, the counterclaimant

argued that the counterclaim defendant was barred from raising
the question of an adequate remedy at law because of its failure

to plead the point affirmatively in its answer.

The court of appeals held that, since under controlling Illinois
law the burden of proving an "inadequate remedy at law" was upon
the plaintiff, the defendant was not required to plead an "adequate
remedy at law" as an affirmative defense. The court noted that,
among federal courts, there is a split of opinion on this question and
that, in some courts, the defendant is required to plead as an affirm-
ative defense any issue specifically indicated in rule 8(c) regard-
less of who has the burden of proof under state law. According to
the Seventh Circuit Court of Appeals, however, "in our view the
better rule is that a defendant need plead affirmatively only those

defenses upon which he carries the burden of proof."32

31 The provisions of Indiana Rule of Trial Procedure 8(C) largely parallel
those of the federal rule.

32488 F.2d at 813. In addition, the Supreme Court of Indiana recently
recognized that the defense of sovereign or governmental immunity must be
raised as a Trial Rule 8(C) affirmative defense. Miller v. Griesel, 308 N.E.2d
701 (Ind. 1974).



1974] SURVEY—CIVIL PROCEDURE 67

The effect of a failure to reply was reiterated33 by the Indiana
Court of Appeals in the case of State v. Hladik.34 The question of
what pleadings require a reply arose in the context of an eminent
domain action. Eight months before trial the defendants filed an
"Amended Supplemental Pleading" in which they characterized
themselves as "third party plaintiffs" and in which they complained
that the actions of the "third party defendants" in constructing a

sewer and high tension electrical line constituted an additional tak-
ing for the purposes of assessing damages. On motion of the State,
the third party defendants were struck from the action. The State
failed to respond to the allegations of the supplemental pleading,

and the trial court ordered that, in the absence of amendment or
reply, the State was deemed defaulted as to the issues set forth in
the pleading. On appeal, the ruling of the trial court was upheld.
The court of appeals declared that, although the supplemental
pleading was not a "denominated counterclaim, which is the only
counterclaim to which a literal reading of Trial Rule 7(A) requires

a reply,"
35

nonetheless, the State was obligated to reply pursuant to

the order of the trial court. Its failure to reply, the court held, con-

stituted an admission of the veracity of the allegations made in the
supplemental pleading.

A number of recent Indiana cases have interpreted and refined
the law relating to amendments of complaints. In Sekerez v. Gary
Redevelopment Commission,3 * the plaintiff filed an amended com-
plaint after an answer was filed by the defendant. The defendant
moved to strike the plaintiff's amended complaint on the ground
that it was not filed in compliance with Trial Rule 15(A). In dis-
cussing the question on appeal, the appellate court stated that, pur-

suant to Trial Rule 15(A), an amended complaint may be filed
following an answer only with leave of the court or with written

consent of the adverse party. An amended complaint may be filed
as a matter of right prior to the answer ; but, the court held, if the

complaint is filed after that time, and if neither condition is satis-

fied, the amended complaint is properly struck.

Interpretation of Trial Rule 15(C), concerning the relation

back of amendments, was rendered in the case of Simmons v. Fen-

ton.
37 The complaint, in an action sounding in tort, was filed on the

33See Harvey, Civil Procedure and Jurisdiction, 1973 Survey of Indiana

Law, 7 Ind. L. Rev. 24, 34 (1973), for a discussion of Commercial Credit

Corp. v. Miller, 280 N.E.2d 856 (Ind. Ct. App. 1972), wherein the problem

was also discussed.
34302 N.E.2d 544 (Ind. Ct. App. 1973).
35Id. at 548.
36301 N.E.2d 372 (Ind. Ct. App. 1973).
37480 F.2d 133 (7th Cir. 1973).



68 INDIANA LAW REVIEW [Vol. 8:59

last day of the two-year statute of limitations period. The defend-
ant named in the complaint was, in fact, the daughter of the woman
who was driving the car which caused the alleged injury. The plain-
tiffs, however, first became aware of this error, according to their
motion to "correct the misnomer by substituting a proper name,"
when the daughter filed a motion for summary judgment approxi-
mately fourteen months after the statute of limitations had run.
The question was whether plaintiffs' motion to substitute the proper
name should be granted and whether the original complaint, as
amended, would relate back to the time of filing.

The mother argued that the statute of limitations had run and
that, pursuant to Trial Rule 15(C), there was no relation back of
the complaint as amended. The motion to correct the misnomer
was denied by the trial court, and the Seventh Circuit affirmed,
holding that under Trial Rule 15(C) the defendant must receive
notice of the institution of the action within the period of time pro-

vided by law for commencing the action. Such obviously was not
the case here.

The import of this holding is that a motion to correct a mis-
nomer can be granted only when the defendant is a proper defend-
ant and already in court and, thus, when the only effect of the mo-
tion is to correct the name under which the defendant is sued. How-
ever, if a new defendant is to be substituted or added by amend-
ment, then the substitution or amendment must occur prior to the
time set by the statute of limitations. A substitution occurring
thereafter cannot be saved by the doctrine of relation back. In sum,
rule 15(C) is keyed to notice, whereas the commencement of an
action and the tolling of the statute of limitations are keyed to the
filing of a complaint.

35

Finally, in the case of Ayr-Way Stores, Inc. v. Chitwood,39 the
Indiana Supreme Court was presented with the question of whether
pleadings could be amended to conform to the evidence presented
at trial. The case arose out of a lawnmower accident, and the trial
court granted the plaintiff's motion to amend the complaint to con-
form to the evidence adduced during the trial. The court of appeals
reversed, holding that the defendants had not impliedly litigated
the added issues of strict liability and implied warranty and, more-

36The same result was reached by the Indiana Court of Appeals in a
recent case involving similar circumstances. See Gibson v. Miami Valley
Milk Producers, Inc., 299 N.E.2d 631 (Ind. Ct. App. 1973). In Gibson, the
court stated: "Under the present T.R. 15 and the prior procedure this doc-
trine [relation back] did not permit the addition of an entirely new party
or the stating of an entirely new claim after the statute of limitations has
run." Id. at 638.

39300 N.E.2d 335 (Ind. 1973).



1974] SURVEY—CIVIL PROCEDURE 69

over, that a failure to grant a continuance was prejudicial to the
defense.

40

In the supreme court, the trial court's determination was up-
held. The supreme court held that clearly the amendments should
have been permitted because the proof at trial sustained either a
theory of strict liability or of breach of implied warranty and be-
cause the defendants, by failing to object at trial when the evidence
was presented, consented to the proof offered. Therefore, they
waived the charge of prejudice stemming from the granting of the
amendments. In addition, the court held that, when a trial has
ended without objection or qualification to the course which it took,
the evidence presented is controlling. At that point, neither plead-
ings, pretrial orders, or theories postulated by either party should
operate to frustrate the trier of fact in finding the facts which the
preponderance of the evidence permits.

Concerning the question of whether a continuance should have
been granted to the defendants, the court noted that the defendants

stated only that they would be prejudiced by the amendments. Ac-
cording to the court, the moving party for a continuance must show
that allowing the amendments would be prejudicial to his rights
in maintaining his action or defense. In this case, the defendants,

as the moving parties for continuance, failed to establish their
affirmative burden in demonstrating this particular type of preju-

dice. In conclusion, the court declared that whether a continuance

should be granted when pleadings are amended is a matter of dis-
cretion for the trial court and, absent a showing of clear and preju-

dicial abuse of that discretion, the trial court's ruling will not be

disturbed.
41

Pretrial motions relating to change of venue and change of

judge were the subject of judicial consideration in a few recent
cases. In State ex rel. Yockey v. Superior Court,42 the supreme court

gave a definitive interpretation of Trial Rule 76, which provides in

part that an application for a change of venue or a change of judge

shall be filed not later than ten days after the issues are first closed

on the merits. Specifically, the question presented was when, for

the purposes of Trial Rule 76(2), the issues shall be deemed first

closed on the merits in a situation wherein new issues are devel-
oped subsequent to the pleadings but before trial.

The supreme court held that, for the purposes of Trial Rule

76(2), issues shall be deemed first closed on the merits upon the

filing of the defendant's answer. Filing of the answer, the court

stated, shall initiate the ten-day period within which a change of

40Ayr-Way Stores, Inc. v. Chitwood, 292 N.E.2d 298 (Ind. Ct. App. 1973).
AyAccord, Hunter v. Milhous, 305 N.E.2d 448 (Ind. Ct. App. 1973).
42307 N.E.2d 70 (Ind. 1974).



70 INDIANA LAW REVIEW [Vol. 8:59

venue motion must be made. Furthermore, the court declared, for
the purposes of Trial Rule 76(2), it is immaterial that an amended
or supplemental answer may follow. Likewise, it is immaterial that
a counterclaim is filed to which a reply is required under Trial Rule
7(A). Only the original answer determines when the issues between
adverse parties are first closed.

43

In the case of State ex rel. Sedam v. Ripley Circuit Court,44 the
supreme court recognized an automatic right to a change of judge
when a circuit court judge files an information seeking the removal
of a member of the Board of Public Welfare. The court justified
this holding on the ground that a removal proceeding is adversary
in nature. Thus the functioning of the judge as both prosecutor and
trier of fact cannot be countenanced. Both Trial Rule 79(11) and
Trial Rule 76(1), the court noted, compel a change of venue in this

situation.

Motions to dismiss under the various Indiana Rules of Trial

Procedure were the subject of considerable judicial comment dur-
ing the past term. In the case of Salem Bank & Trust Co. v. Whit-
comb,45 the supreme court considered the operation of Trial Rule
12(B) (8) in converting a motion to dismiss into a motion for sum-
mary judgment. In the trial court, interrogatories had been filed
prior to argument and ruling on the motion to dismiss. The trial
court sustained the motion to dismiss but failed to follow the pro-

cedures for summary judgment set out in Trial Rule 56. The court
of appeals held that the motion to dismiss was automatically con-
verted, by the presence of extraneous matters, into a motion for
summary judgment under Trial Rule 12(B) (8) and cited the trial
court for error in failing to follow the summary judgment proce-
dure.

46 The supreme court affirmed, holding that the mere filing

43Accord, State ex rel. Katz v. Superior Court, 308 N.E.2d 694 (Ind.

1974). A related problem was raised in Hunter v. Milhous, 305 N.E.2d 448
(Ind. Ct. App. 1973). In Hunter, the question of when the issues are deemed
first closed for the purposes of Trial Rule 76(2) arose in the context of a

multi-defendant suit in which a number of answers were filed. The court of
appeals noted that the question of whether the first answer or the last an-

swer filed acts to close the issues on the merits "seems to be a beclouded
point in Indiana law." Id. at 453. The question was left unresolved by the
court, since the denial of defendant's motion for change of venue was upheld
on the grounds that under Trial Rule 76(7), the defendant had waived a
change of venue by failing to object at the time the case was set for trial.
Discretionary relief under Trial Rule 76(8) was similarly rejected for failure
to show good cause. According to the court, local prejudice does not establish
good cause in an action to be tried without a jury.

44301 N.E.2d 185 (Ind. 1973).
45308 N.E.2d 707 (Ind. 1974).
46Salem Bank & Trust Co. v. Whitcomb, 298 N.E.2d 537 (Ind. Ct. App.

1973).



1974] SURVEY—CIVIL PROCEDURE 71

of the interrogatories with the court, whether or not specifically
called to the court's attention by the parties, sufficed to convert
the motion to dismiss into a motion for summary judgment.

In the case of Sundstrand Corp. v. Standard Kollsman Indus-
tries, Inc.,

47
the United States Court of Appeals for the Seventh

Circuit found inappropriate the dismissal with prejudice of a coun-
terclaim seeking specific performance. The trial court dismissed
the counterclaim for the reason that equitable relief was not appro-
priate since the counterclaimant had an adequate remedy at law.
The question then arose as to whether it was proper to dismiss the
case rather than to award damages to the counterclaimant in light
of rule 54(c) which states, in essence, that the final judgment shall
grant the relief to which the party is entitled even if the party has
not demanded such relief in his pleadings.

The court of appeals held that the dismissal with prejudice,
in barring a subsequent suit for damages, contravened rule 54(c)

and, moreover, thwarted pursuit of the adequate legal remedy given
as the reason for dismissing the equitable claim. Hence, the court

overruled the dismissal and remanded the case for a hearing on the
damages question.

Lack of standing constituted the ground for dismissal in a
number of recent court decisions. In the case of City of Mishawaka
v. Mahoney,46 the principal issue presented on appeal was whether
the City, its mayor, its common council and the city clerk could
maintain an action for declaratory judgment in order to determine
the validity of a city ordinance which regulated the distribution of
pornographic materials in the community. The City contended that
the prospect of liability for false arrest for enforcing the ordinance

if invalid constituted an interest within the purview of the Uniform
Declaratory Judgment Act49 which was sufficient to warrant dec-
laratory relief. The court of appeals upheld the dismissal by the
trial court on the ground that the City lacked standing to maintain

this action under the Act. Noting the incongruity inherent in per-

mitting a municipality, which has enacted an ordinance, to implore

the court to rule upon its validity, the court of appeals held that

47488 F.2d 807 (7th Cir. 1973). See text accompanying note 32 supra.
48297 N.E.2d 858 (Ind. Ct. App. 1973).
49Ind. Code §34-4-10-2 (Burns 1973). This provision is as follows:

Who may have determination and obtain declaration.—Any person
interested under a deed, will, written contract or other writings con-

stituting a contract, or whose rights, status or other legal relations
are affected by a statute, municipal ordinance, contract or franchise,
may have determined any question or construction or validity arising
under the instrument, statute, ordinance, contract, or franchise and

obtain a declaration of rights, status or other legal relations there-

under.



72 INDIANA LAW REVIEW [Vol. 8:59

the City and its officials had shown no right, status, or interest
which was adversely affected by enforcement of the ordinance in
question.

Similarly, a motion to dismiss was upheld against a munici-
pality for lack of standing to challenge an action of the State Tax
Board in the case of City of Indianapolis v. Indiana State Board of
Tax Commissioners.50 The City had intervened as an additional
party-plaintiff in an action to enjoin the State Tax Board from
making further increases in the 1971 county budgets and in the
1970 levies and rates for municipal corporations within Marion
County. Upon judgment entered against the plaintiffs, the City
alone prosecuted the appeal. The appellate court held that the City
of Indianapolis, as a nontaxpaying municipal corporation, was un-
able to show any injury to a legally protected interest through the
Tax Board's action. Furthermore, the City-County Council, on
whose behalf the City appeared, lacked a monetary interest in the
budgets or levies of other governmental units within the county.

Thus, the appeal was properly dismissed for lack of standing.51

In Ruckman v. Pinecrest Marina, Inc.,57 the district court, in a
wrongful death action, granted a motion to dismiss under rule 12

of the Federal Rules of Civil Procedure. The suit was brought by
the administrators of the estates of two unemancipated minors who
were killed as a result of the alleged acts of the defendant. Holding
that Indiana law was controlling, the court dismissed with leave to
amend for the reason that Indiana law requires that the father, not
the personal representative, bring a wrongful death action.

53 Ac-

cording to the court, the personal representative of an estate of a

5O308 N.E.2d 868 (Ind. 1974).
51 The question of whether the City had standing as an original plaintiff

was not reached by the court. However, the supreme court criticized the
court of appeals ruling which had dismissed the appeal on the grounds of

mootness. City of Indianapolis v. Indiana State Bd. of Tax Comm'rs, 294
N.E.2d 136 (Ind. Ct. App. 1973). The supreme court noted that this ruling
was improper because every taxpayer challenge to the tax-levying process
arrives in the appellate courts after taxes have "presumably been paid."

308 N.E.2d at 871. Thus, the effect of holding the appeal "moot" would be
to render nugatory the right of aggrieved taxpayers to challenge the actions

of the State Tax Board. Id.
For recent cases holding that a municipal agency lacks standing as an

aggrieved party to seek review of a decision of one of its zoning boards, see

Metropolitan Dev. Comm'n v. Newlon, 297 N.E.2d 483 (Ind. Ct. App. 1973),
and Metropolitan Dev. Comm'n v. Losche, 295 N.E.2d 836 (Ind. Ct. App.
1973). Both decisions relied upon the earlier case of Metropolitan Dev.
Comm'n v. Cullison, 277 N.E.2d 905 (Ind. Ct. App. 1972).

52367 F. Supp. 25 (N.D. Ind. 1973).
53See Ind. Code § 34-1-1-8 (Burns 1973).



1974] SURVEY—CIVIL PROCEDURE 73

minor can sue for the death of the child only if the child's parents
are dead or if the child has been emancipated.54

A motion to dismiss under Trial Rule 12(B) (7) for failure to
join an indispensible party was the subject of consideration in the
case of County Department of Public Welfare v. Morrow.55 The
action was brought against the county board to prevent a man
named Kelley, who had been appointed director of the board, from
assuming that position. Kelley was not joined as a party defendant.
Following the court's issuance of a temporary restraining order,
the county board moved to dismiss on the ground of a failure to
join an indispensible party. The court of appeals held that Kelley
was an indispensible party in that the decree expressly prevented
him from ever assuming the duties of director and thereby re-
strained his employment. According to the court, because Kelley's

rights were adjudicated in the action, his presence as a party
defendant was necessary.

The grounds for dismissal under Trial Rule 41(E) received
interpretation in the case of State v. McClaine.56 Trial Rule 41(E)
provides, generally, that whenever there has been a failure to com-
ply with the trial rules and no action has been taken in a civil case
for a period of sixty days, the court, on its own motion or on the
motion of a party, shall order a hearing for the purpose of dismiss-

ing the case. In the McClaine case, there were two lengthy periods
of time during which the State, as plaintiff, took no affirmative
steps in the prosecution of its case. The first time period ran from
1958 to 1967 ; the second time period extended from 1968 to Febru-
ary 17, 1971, on which day the State filed a request for trial. On
February 26, 1971, the defendants moved to dismiss under Trial
Rule 41(E). The supreme court held that the defendants' motion
was not timely made. According to the court, the motion must be
filed after the sixty-day period has expired but before the plaintiff

resumes prosecution of the case. Since the defendants here moved
to dismiss after the plaintiff had filed its request for trial, they

failed to satisfy the requirements of Trial Rule 41(E), as con-

strued in this opinion.

The other aspect of Trial Rule 41(E), dismissal for failure to

comply with the trial rules, received interpretation in the case of

Webb v. City of Bloomington
57 The action was in the form

of a remonstrance against an ordinance adopted by the City which

S4367 F. Supp. at 26-27. The court cited for this proposition the cases

of Berry v. Louisville, E. & St. L.R.R., 128 Ind. 484, 28 N.E. 182 (1891),
and Pere Marquette R.R. v. Chadwick, 65 Ind. App. 95, 115 N.E. 678 (1917).

55301 N.E.2d 787 (Ind. Ct. App. 1973).
56300 N.E.2d 342 (Ind. 1973).
57306 N.E.2d 382 (Ind. Ct. App. 1974).



74 INDIANA LAW REVIEW [Vol. 8:59

would have effected an annexation of certain property. The litiga-
tion was terminated when the City's motion to dismiss pursuant to
Trial Rule 41 was granted by the trial judge after the ordinance
had been repealed.

One question raised on appeal was whether it was within the
competency of the trial court to dismiss the action pursuant to Trial

Rule 41 after the ordinance was withdrawn. The argument ad-
vanced was that only the plaintiff can move for dismissal under the
rule. The court of appeals held that a dismissal pursuant to Trial
Rule 41 (E) for failure to comply with "these rules" would embrace
Trial Rule 8 as well as Trial Rule 12, and that, therefore, the mo-
tion was properly asserted by the defendant.58 The reasoning under-
lying the court's holding was that the absence of a litigable claim,
an integral part of every action, means there is no claim for relief
stated under Trial Rule 8. Because there was no claim for relief
stated pursuant to Trial Rule 8, there was a failure to follow the
rules. Hence, the dismissal under Trial Rule 41(E) was proper.

A further question raised on appeal in the case concerned the
propriety of the trial court's denial of the remonstrator's motion

for summary judgment. The court of appeals held that the motion
for summary judgment pursuant to Trial Rule 56 was not appropri-
ate from a legal standpoint given the absence of a justiciable issue.

Further exposition of the requirements for obtaining a sum-
mary judgment pursuant to Trial Rule 56 was provided in the case
of Renn v. Davidson's Southport Lumber Co.59 In that case,
the motion for summary judgment was filed by the counterclaimant,
a seller of building materials furnished for the construction of a

house. The court of appeals, in reversing the trial court which had
granted the motion, observed that the affidavit supporting the mo-
tion did not show affirmatively that it was made on personal knowl-
edge or that the affiant was competent to testify regarding the
matters stated therein. Furthermore, the affidavit set forth no

facts which would support any of the conclusory statements made
and, in particular, it failed to set forth facts which would establish
an agency relationship between the homeowners and the contractor
who purchased the building materials.

The court of appeals asserted that for the seller to be entitled
to summary judgment he must make a prima facie case. A determi-
nation of whether a prima facie showing has been made is based
upon affidavits offered, pursuant to Trial Rule 56(E), concerning
matters placed in issue by the pleadings. Thus, according to the
court, to be entitled to that initial determination the moving party

56Id. at 386.

59300 N.E.2d 682 (Ind. Ct. App. 1973).



1974] SURVEY—CIVIL PROCEDURE 75

must comply with the affidavit requirements found in Trial Rule
56 (E) . The court of appeals held that, absent compliance with that
rule by the moving party, a summary judgment in his favor is incor-
rect, even if the opposing party fails to respond to the motion. 60

Finally, in the case of State v. Smith,
6

' the relationship of Trial

Rule 63 to a summary judgment proceeding was considered by the
supreme court.62 The case, an eminent domain proceeding, was
originally docketed to a certain judge who presided over all pretrial
motions and hearings in the case, including a motion for summary
judgment. Summary judgment was granted to the defendant and
the State then filed a motion to set aside the summary judgment.
In the interim between the judgment and the motion, however, the
original judge had been succeeded by another judge. The new sit-
ting judge transferred the hearing on the motion to set aside to his
predecessor who was, at that time, a private attorney. He overruled
the State's objection to the transfer and the state appealed. The
supreme court held that, pursuant to Trial Rule 63, it was entirely
proper to transfer the cause to the person who once sat on the case.
A summary judgment hearing, the court asserted, is part of a "trial
of a cause" as those words are used in the context of Trial Rule 63.

D. Pretrial Procedures and Discovery

Further refinement was given this year to the motion in
limine,

63
a procedure for obtaining a protective order to prevent the

introduction of certain evidence at trial. In the case of Baldwin v.
Inter City Contractors Service, Inc.,64 the court of appeals discussed

the use of this motion in the context of a court trial. The motion,
which sought to exclude expert testimony as irrelevant, was granted
by the trial court. The court of appeals stated that the trial court's
ruling on this motion was improper. According to the appellate
court, the motion in limine is inappropriate in a trial to the court

;

its use is limited to trials by jury. Also, the court held that the

motion has a restricted purpose in that it is designed to exclude

60Accord, Podgorny v. Great Cent. Ins. Co., 311 N.E.2d 640 (Ind. Ct.

App. 1974) ; Newell v. Standard Land Corp., 297 N.E.2d 842 (Ind. Ct. App.
1973).

6, 297 N.E.2d 809 (Ind. 1973).
62Ind. R. Tr. P. 63(A) provides:
The judge who presides at the trial of a cause or a hearing at which
evidence is received shall, if available, hear motions and make all
decisions and rulings required to be made by the court relating to
the evidence and the conduct of the trial or hearing after the trial

or hearing is concluded.
63See Harvey, Civil Procedure and Jurisdiction, 1973 Survey of Indiana

Law, 7 Ind. L. Rev. 24, 38 (1973).
64297 N.E.2d 831 (Ind. Ct. App. 1973).



76 INDIANA LAW REVIEW [Vol. 8:59

only prejudicial matter. Its scope cannot be extended to exclude
items of evidence which may merely be irrelevant. Thus, unless
prejudice to the cause is demonstrated, the motion in limine must
be denied.

Notable in the area of discovery procedures is the case of Rich-
mond Gas Corp. v. Reeves.65 One of the issues raised on appeal in
this case was whether the trial court erred in permitting a party
to read into evidence a portion of a deposition which contained an
expert's opinion concerning the cause of an explosion. Specifically,
an argument raised on appeal was that the expert's testimony was
inadmissible because it was not given in response to a proper hypo-
thetical question. The court of appeals referred to Trial Rule
32(D) (3) (b), concerning errors and irregularities occurring at an
oral examination upon deposition. This rule specifies that any
objection to the form of questions or answers is waived unless it is
seasonably made at the taking of the deposition. Noting that here
no objection was made when the deposition was taken, the court
held that, therefore, the opponent of the evidence waived any error
arising from the failure to question the expert witness in the proper
hypothetical form. Thus, on this point, the court concluded that
error was not committed by the trial court in allowing the depo-
sition to be read into evidence.

E. Trial and Judgment

In the case of Robinson v. State,6 * the supreme court issued
forceful guidelines concerning the use of attorneys' questions on

voir dire examination. The court reproved the long-standing prac-
tice of lawyers in Indiana to try their cases during the voir dire

examination. Such practice, the court observed, fosters bias and
prejudice advantageous to the litigant instead of avoiding bias and
prejudice in the selection of the jury. To eliminate this evil, the
supreme court suggested that proper voir dire examination

can be best accomplished by the trial judge's assumption
of a more active role in the voir dire proceedings and by
exercising, rather than abdicating, his broad discretionary

power to restrict interrogation to that which is pertinent
and proper for testing the capacity and competence of

jurors.
67

Thus, the supreme court admonished judges to supervise more
closely the conduct of attorneys during the voir dire examination.

65302 N.E.2d 795 (Ind. Ct. App. 1973).
66297 N.E.2d 409 (Ind. 1973).
b7Id. at 412.



1974] SURVEY—CIVIL PROCEDURE 77

A number of recent cases enunciated the standard to be applied
by the trial court in considering a motion for a judgment on the
evidence (directed verdict) under Trial Rule 50. In the case of
Johnson v. Mills,66 the court of appeals stated that a directed ver-
dict on a specific issue depends upon the total absence of evidence
on an essential element of the plaintiff's case. The evidence on the
issue, the court noted, must be without conflict and susceptible of
but one ruling in favor of the moving party. The principle was
reaffirmed in the recent cases of Smith v. Chesapeake & Ohio Rail-
road,

69
Miller v. Griesel,

70 Lake Mortgage Co. v. Federal Na-
tional Mortgage Association, 7

}

and Powell v. Powell. 72 In the latter
case, the court of appeals held that a directed verdict is proper only

in cases tried before a jury or an advisory jury.73 In actions tried
by the court without a jury, the court observed, a motion for invol-
untary dismissal under Trial Rule 41(B) may be the appropriate
way to raise the same question as would be presented by a motion
for judgment on the evidence in a jury trial.

Another aspect of Trial Rule 50 was considered in the case of
Hess v. Bob Phillips West Side Ford, Inc.74 The question raised on
review was whether a trial judge may, pursuant to its own motion

68301 N.E.2d 205 (Ind. Ct. App. 1973).
69311 N.E.2d 462 (Ind. Ct. App. 1974). The trial court in the Smith

case, at the close of all the evidence, granted a motion for judgment on the
evidence and directed the jury to return a verdict for the defendant. The
court of appeals, in reversing, cited with approval the case of Swearngin v.

Sears Roebuck & Co., 376 F.2d 637 (10th Cir. 1967). There, and in the dis-
cussion in Smith, the point was made that, in determining whether to grant
or deny a Trial Rule 50 motion, the entire body of evidence must be exam-
ined, in addition to all inferences favorable to the party against whom the
motion is made. In short, the evidentiary review which the trial court con-

ducts is not limited to a review of only the evidence of the non-moving party,

but must encompass all the evidence which is before the court when the mo-
tion is made. The same standard, the court stated, would apply when the
motion was made in a post-verdict setting.

70297 N.E.2d 463 (Ind. Ct. App. 1973), aff'd, 308 N.E.2d 701 (Ind. 1974).
In this case, the standards were held applicable to a motion granted at the
close of plaintiff's case.

71 308 N.E.2d 739 (Ind. Ct. App. 1974). In this case, the motion for judg-
ment on the evidence was granted at the close of all the evidence. Accord-
ingly, the jury verdict for cross-plaintiffs was set aside. The court of ap-
peals, on review, noted that the judgment on the evidence would have been
improper if there were any probative evidence or reasonable inferences to be
drawn from the evidence or if, in considering the evidence, reasonable men
might differ in their conclusions.

72310 N.E.2d 898 (Ind. Ct. App. 1974).
73See Hoosier Ins. Co. v. Ogle, 276 N.E.2d 876 (Ind. Ct. App. 1971);

Clark v. Melody Bar, Inc., 149 Ind. App. 245, 271 N.E.2d 481 (1971).
74304 N.E.2d 814 (Ind. Ct. App. 1973).



78 INDIANA LAW REVIEW [Vol. 8:59

under Trial Rule 50, set aside a judgment entered on a jury verdict
and, prior to hearing argument and ruling on a motion to correct
errors, enter judgment for the other party. In this case, the trial
to a jury resulted in a verdict for the plaintiff; judgment was en-
tered on the same day that the verdict was returned. The defendant
filed a motion to correct errors and, on the day the parties appeared
for a hearing on that motion, the trial court on its own motion set
aside the judgment pursuant to Trial Rule 50(A) (6) and entered
a judgment notwithstanding the verdict. On appeal, the plaintiff
contended that the court could act to set aside a judgment only in
response to a motion by one of the parties. The court of appeals
held that the trial court had the authority under Trial Rule 50 to
act sua sponte to set aside a judgment and enter a new judgment
prior to ruling upon the motion to correct errors. In effect, then, a
trial court may enter judgment on the evidence on its own motion
at any time prior to ruling upon a motion to correct errors.

The question of whether attorneys' fees and other fees can
appropriately be included in costs awarded upon judgment received
attention in recent judicial opinions. In the case of State v.

Holder,
75

the State's appeals in eminent domain proceedings raised
the questions of whether fees for attorneys, professional witnesses,
and trial preparation could be awarded to the appellee land-owner.
The trial court granted the fees. The supreme court reversed, hold-
ing that the principle had long been established in Indiana law that
the word "costs" does not encompass attorneys' fees76 and that,
therefore, the power granted to the judge to award "costs" under
the Eminent Domain Act77 does not include authority to order the
payment of attorneys' fees.

The State further argued that money awarded to the appellee
for trial preparation and professional witness fees should not be
sustained and that, again, such expenses were not encompassed in
the term "costs." The supreme court agreed. The court stated that
it did not believe that the word "costs" was intended to cover
every conceivable expense incurred by a landowner in that type of

action. Citing cases from other jurisdictions as authority, 78 the su-
preme court held that the expenses of retaining an expert witness
to testify and other trial preparation expenses, such as mailing

costs, travel, telephone, and photographic fees, are not contemplated

75295 N.E.2d 799 (Ind. 1973) (Prentice, J., concurring; Arterburn, C.J. &
Hunter, J., dissenting).

76See, e.g., Hutts v. Martin, 134 Ind. 587, 33 N.E. 676 (1893).
77Ind. Code §32-11-1-10 (Burns 1973).
76Frustuck v. Fairfax, 230 Cal. App. 2d 412, 41 Cal. Rptr. 56 (1964)

;

Manchester Housing Authority v. Belcourt, 285 A.2d 364 (N.H. 1971); State

v. Mandes, 119 N.J. Super. 59, 290 A.2d 154 (1972).



1974] SURVEY—CIVIL PROCEDURE 79

in the use of the term "costs." Accordingly, that part of the trial
court's order which directed the State to pay the appellee's fees for
attorneys, trial preparation, and expert witnesses was vacated on
appeal.

In a concurring opinion, Justice Prentice expressed his belief
that fees for trial preparation and professional services were simi-
larly improper under Trial Rule 41(A)(2), which authorizes a
plaintiff to withdraw his action under voluntary dismissal.79 Jus-
tice Prentice opined that the "terms and conditions" established by
the court for voluntary dismissal, which terms and conditions ordi-
narily include the costs of the action, would not encompass attor-
neys' fees and the expenses of trial preparation.80 A lengthy dis-
senting opinion by Justice Arterburn expressed the view that such
expenses could properly be awarded at the trial court's discretion
in appropriate cases under Trial Rule 41(A) (2).

81

In the case of Perry County Council v. State ex rel. Baertich,62

the court of appeals was presented with the question of whether
attorneys' fees are recoverable in a mandate action. The plaintiff-
appellee, a public nurse, brought the action in mandate against the
Board of County Commissioners to obtain her salary from appropri-
ated public monies. The question raised on appeal was the appro-
priateness of the award of attorneys' fees by the trial court. The
appellate court held that the general rule in Indiana, to the effect

that attorneys' fees are not recoverable as damages in the absence
of a statute or contract permitting recovery of those fees, applies to

mandate actions. According to the court, mandate is an extraordi-
nary legal, rather than equitable, remedy. By way of dicta, the
court observed that "if the case had been in equity the attorney

fees would have been proper."83

Modification of judgments in the context of divorce actions

came under judicial scrutiny in three recent cases. In the case of

79295 N.E.2d at 801 (Prentice, J., concurring).
60Id.

* ] Id. at 802 (Arterburn, C.J., dissenting). In the case of State v. Palmwic

Indiana Realty, Inc., 297 N.E.2d 479 (Ind. Ct. App. 1973), wherein the hold-

ing of Holder was applied to disallow the award of attorneys' fees, appraisers'

fees and other expenses in an eminent domain proceeding, Judge Sullivan, in

a concurring opinion, found the Holder dissent "extremely persuasive." Id.

82301 N.E.2d 219 (Ind. Ct. App. 1973).
63
Id. at 222, citing Gavin v. Miller, 222 Ind. 459, 54 N.E.2d 277 (1944).

In Gavin, the court stated that the "right to recover attorneys' fees from

one's opponent does not exist in the absence of a statute or some agreement,

though a court of equity may, under some circumstances, allow attorneys'

fees to be paid out of a fund brought under its control." Id. at 465, 54 N.E.2d

at 280.



80 INDIANA LAW REVIEW [Vol. 8:59

Jackman v. Jackman,64 the court of appeals considered the question
of whether a trial court may enter a judgment different from that
first entered if the change of judgment occurs within ninety days
after the first judgment and entry. Following a hearing on the
evidence, the trial court, on January 6, 1972, entered its decree
awarding a divorce to each party. On February 18, 1972, the trial
court changed its judgment and entered judgment for the plaintiff
on her complaint and against the defendant on his cross-complaint.
Responding to defendant-appellant's contention that the trial court
lacked continuing authority to effect the change of result, the court
of appeals asserted that Trial Rule 52 (B) and Trial Rule 59, as well
as Indiana Code section 31-1-6-3,65 empower the trial court to effect
the change of result. Thus, the court held, the trial court retained

authority and did not commit error by changing the judgment with-
in a period of less than ninety days after the rendition of the origi-

nal judgment.86

In the case of Wilms v. Wilms,67 the trial court, in 1967, en-
tered a final decree of divorce between the parties. This decree set

out the total sum to be paid to the former wife, with payments to
be made on a monthly installment basis. Five years later, the hus-
band filed a petition to modify the support payments on the basis
of a change in circumstances. The wife filed a motion to dismiss
for failure to state a claim upon which relief could be granted,
which motion was granted by the trial court. On appeal, challenge
was made against the dismissal of the petition to modify support.
The court of appeals upheld the ruling below, holding that, under
the general rule and prior Indiana precedent, a judgment rendered
for a sum in gross, even though payable in installments, is not sub-
ject to modification. The court observed that the legislature did not
accord express power to a trial court to modify such alimony judg-
ments on a showing of changed circumstances.

Also, the question of the trial court's authority to modify its

order was raised in the case of State ex rel. Dale v. Superior Court.™
In an original action to the supreme court for a writ of prohibition,
the question was raised whether the respondent court had the au-
thority to modify a divorce decree on its own motion under Trial
Rule 60. In this case, the modified decree awarded an alimony

84294 N.E.2d 620 (Ind. Ct. App. 1973).
85Ind. Code §31-1-6-3 (Burns 1973).
86Also, in the case of Inkoff v. Inkoff, 306 N.E.2d 132 (Ind. Ct. App.

1974), the court held that the trial court has continuing jurisdiction to award
attorneys' fees even after an appeal of the case has been perfected. For a
discussion of another aspect of this case, see text accompanying note 128 infra.

67301 N.E.2d 249 (Ind. Ct. App. 1973).
68299 N.E.2d 611 (Ind. 1973).



1974] SURVEY—CIVIL PROCEDURE 81

judgment to the plaintiff in lieu of the transfer of personal property-
ordered under the original decree. The realtor argued that the
court lacked the power or authority to modify its judgment on its
own motion. The supreme court agreed. The court stated that
Trial Rule 60, paragraph A, permits a modification without motion
of the parties only for clerical mistakes. However, if the grounds
for modification are among those cited in paragraph B, then they
must be presented by a motion of the parties. In this case, because
the error was not of a clerical nature and because no motion was
made by the parties on other grounds, the supreme court held that
the trial court had no power or authority to modify its judgment.

Further exposition of Trial Rule 60, allowing for relief from
judgment or order, was rendered in a number of recent decisions.
In the case of Public Service Commission v. Schaller,89 one of the
several questions raised under Trial Rule 60(B) was whether the

relief sought was pursued within a reasonable time. The require-

ments explicit in this rule are that a motion for relief from judg-

ment must qualify under one of the enumerated reasons for relief

and it must be made within a reasonable time. The court of appeals
observed that the motion in this cause was made some twenty-one
years after entry of the judgment from which relief was sought. In

addition, more than ten years had expired since the discovery of the

conditions which allegedly altered the equities of the original judg-

ment. Furthermore, the court noted, the moving party failed either

to allege that the motion was filed within a reasonable time or to

set out extenuating circumstances which would explain such time

gaps as were found in the case. This failure was regarded as fatal

to the motion and, consequently, the court found that under the

facts the motion was not filed within a reasonable time.

Another case involving Trial Rule 60 was School City of Gary

v. Continental Electric Co.
90 After successfully defending an appeal

in the court of appeals,
91
the plaintiff then filed with the trial court

a motion pursuant to Trial Rule 60 (B) (8) for the purpose of filing

an amended complaint. In the original action, the plaintiff ob-

tained injunctive relief compelling the school to accept its bid for

electrical work on a new school construction project. Thereafter,

the school construction project fell through and plaintiff sought to

reopen the case to seek a remedy at law—namely, damages for ex-
penses in preparing the bid and prosecuting its claim. The trial

89299 N.E.2d 625 (Ind. Ct. App. 1973).
9O301 N.E.2d 803 (Ind. Ct. App. 1973). See note 120 infra.
91 School City of Gary v. Continental Elec. Co., 149 Ind. App. 416, 273

N.E.2d 293 (1971).



82 INDIANA LAW REVIEW [Vol. 8:59

court granted the plaintiff's motion and permitted the plaintiff
leave to file an amended complaint. The defendants appealed.92

The court of appeals held, on the preliminary question raised
by the appeal, that the defendants' appeal was proper, since the
granting or denying of relief under Trial Rule 60 was deemed a
final judgment from which an appeal lies.93 Thus, the court of
appeals held that, although the defendant-appellants were yet to
plead and respond to the amended complaint, and although the trial
court had made no determination concerning the plaintiff's entitle-
ment to relief under rule 60(B) (8), the determination that the
motion should be granted was itself appealable.

A further question raised in the case in regard to Trial Rule 60
was whether, under the rule, a successful party could move to amend
after an initial appeal. In an extensive opinion, drawing heavily
upon treatise comments and federal cases, the court held that the
motion was proper and stated that " [a] lthough it is rare, the pro-
visions of TR.60(B) (8) are available to a prevailing party."

94

The scope of the trial court's equitable discretion under Trial
Rule 60 formed the basis of the supreme court's discussion in Soft
Water Utilities, Inc. v. LeFevre.95 Specifically, the court was pre-
sented with the question of whether a trial court has the power
under Trial Rule 60(B) to change the date of its ruling on peti-
tioner's motion to correct errors. The applicable facts of the case
were that the plaintiff, upon judgment rendered for the defendant,
filed its motion to correct errors with the trial court on June 30,
1972. Following a series of attempts to ascertain whether the court

had acted on the motion, plaintiff was informed on July 10, 1972,
by the clerk of the court, that its motion had never been received.
Thereupon, on July 12, 1972, plaintiff filed another copy of the

motion to correct errors. On August 11, 1972, plaintiff received
notice from the judge that its motion to correct errors had been
overruled on July 10th. Therefore, the thirty-day time limit for

filing the praecipe under Appellate Rule 2 had expired.

92The defendant also filed a motion to dismiss plaintiff's motion for re-
lief from judgment for the reason that plaintiff's motion failed to state a
claim. The trial court overruled defendant's motion, and the court of appeals
held that the denial of a motion to dismiss was not a final appealable order.

93See Ind. R. Tr. P. 60(C). Also, in the case of Northside Cab Co. v. Pen-
man, 297 N.E.2d 838 (Ind. Ct. App. 1973), it was noted that, because a
decision under Trial Rule 60 is a final and appealable judgment, it is a
judgment which requires the filing of a motion to correct errors, pursuant
to Trial Rule 59, before appeal.

94301 N.E.2d at 810. See 4 W. Harvey, Indiana Practice 222 (1971)

;

7 J. Moore, Federal Practice 1H[60.18[8], 60.22[1] (2d ed. 1972). See also
Ferraro v. Arthur M. Rosenberg Co., 156 F.2d 212 (2d Cir. 1946).

95301 N.E.2d 745 (Ind. 1973).



1974] SURVEY—CIVIL PROCEDURE 83

The plaintiff then filed with the trial court, pursuant to Trial
Rule 60(B), a motion seeking relief from the order of July 10th
for the reason that it had not received notice of the entry of judg-
ment in time to prosecute its appeal. The court granted the relief
requested and ordered, nunc pro tunc, that the date of overruling
the motion to correct errors be changed to August 14, 1972. On
appeal, perfected by the plaintiff, the court of appeals granted the
defendant's motion to dismiss the appeal because the praecipe was
not filed within thirty days of the ruling on the motion to correct
errors.

96

The supreme court overruled the decision of the appellate
court

97 and held that, under the circumstances, it was within the
province of the trial court to change the date of its ruling on the
motion to correct errors. According to the supreme court

:

A motion under TR.60(B) is addressed to the equitable
discretion of the trial court. The burden is properly upon
the movant to affirmatively demonstrate that relief is
necessary and just. The trial court was so satisfied in
this case.

98

The import of the court's ruling is that a trial court has the au-
thority under Trial Rule 60(B) (8) to change the date on its ruling
if the situation warrants. The supreme court noted that the better
procedure for effecting this authority under the rule would be for

a trial court to vacate the order previously entered and re-enter

the order on a subsequent date. The praecipe would then have to
be filed, under Appellate Rule 2(A), within thirty days after the

re-entry of the court's ruling on the motion to correct errors.

The usage of Trial Rule 59 in seeking a new trial was con-
sidered in the cases of Austin v. Durbin" and Ernst v. SchmaV 00

In the Austin case, the appellant filed a motion to correct errors

seeking a new trial on the basis of newly discovered evidence. The
trial court denied the motion and the court of appeals affirmed.
The appellate court based its decision on appellant's failure to
overcome the strong presumption inherent in Trial Rule 59 that

the alleged evidence could, with the exercise of due diligence, have

been discovered in time to use at trial.

96293 N.E.2d 788 (Ind. Ct. App. 1973). See Harvey, Civil Procedure and

Jurisdiction, 1973 Survey of Indiana Law, 7 Ind. L. Rev. 24, 48 (1973).
9 Presumably, the supreme court's ruling will also control in the case of

Hendrickson v. American Fletcher Nat'l Bank & Trust Co., 301 N.E.2d 530
(Ind. Ct. App. 1973), which was decided on the basis of the earlier court of
appeals decision.

98301 N.E.2d at 749. Accord, Cazarus v. Blevins, 308 N.E.2d 412 (Ind.

Ct. App. 1974).
"310 N.E.2d 893 (Ind. Ct. App. 1974).
,oo308 N.E.2d 732 (Ind. Ct. App. 1974).



84 INDIANA LAW REVIEW [Vol. 8:59

In the Ernst case, a new trial was granted pursuant to Trial
Rule 59(E) (1) because the trial court believed that, owing to the
complexity of the issues in the case, the jury may have been con-
fused in reaching its verdict. That is, the trial court granted the
new trial because it came to the conclusion that, overall, there was
error involved in the verdict, even if not specifically assigned to

irregularity injected into the trial by the parties in the proceeding.
The court of appeals, stressing the discretionary nature of the use
of Trial Rule 59, upheld the trial court's ruling on the motion to
correct errors and found the reason given sufficient.

A further question was raised as to whether the trial court
was required under Trial Rule 59(E) (7) to make special findings
of fact regarding the issues in the case. The court of appeals noted
that special findings are required under the rule only when a new
trial is granted for the reason that "the verdict, findings or judg-

ment do not accord with the evidence."' 01 Although it was unclear
from the vague reason supplied by the trial court whether its rul-
ing was based on the failure of the verdict to accord with the evi-
dence, the court of appeals held that the strong presumption in

favor of the trial court's action in granting a new trial would op-
erate to exclude its decision from the ambit of Trial Rule 59 (E) (7)

.

Thus, special findings were not necessary.
Another aspect of Trial Rule 59 received consideration in the

case of Baker v. American Metal Climax Corp.™* In an action to
withdraw a submission from the judge pursuant to Trial Rule
53. 1,

103
the question was presented whether Trial Rule 59(D) op-

erated to extend the time in which a judge may rule on a motion
to correct errors on affidavits. Trial Rule 59(D) provides, in part,

that an opposing party has fifteen days after the service of affi-

davits in which to serve opposing affidavits. The judge contended
that the thirty-day period provided by Trial Rule 53.1 did not com-

mence to run until the time had expired for the filing of a counter-
affidavit under the Trial Rule 59 (D) provision.

The supreme court disagreed, holding that the provision of
Trial Rule 59(D) did not extend the time allotted for ruling on
motions under Trial Rule 53.1. The court noted that, if under the
circumstances of the case, thirty days proved an insufficient period

101
/d. at 736.

lo2307 N.E.2d 49 (Ind. 1974).
103 Trial Rule 53.1 provides in part:
Upon failure of a court to enter a ruling upon a motion within thirty
(30) days after it was heard or thirty (30) days after it was filed,
if no hearing is required, the submission of such motion may be with-
drawn, and the judge before whom the cause is pending may be dis-
qualified therein ....



1974] SURVEY—CIVIL PROCEDURE 85

for ruling on the motion, the time could have been extended by-
agreement of the parties or by order of the court. Since neither
procedure was followed and since the thirty days had expired
without a ruling on the motion, the judge lost jurisdiction of the
case.

The case of Hendrixson v. State' 04 involved a belated assertion
of error to a decision denying post-conviction relief pursuant to
Indiana Post-Conviction Rule 1. Post-conviction relief was denied
on July 21, 1972, and on August 9, 1972, petitioner filed a motion
to correct errors addressed to the denial of post-conviction relief.

On October 9 of the same year, a petition to file a "belated supple-
mental motion to correct errors" was filed. The court of appeals
held that Trial Rule 59(G) governed the situation because a post-
conviction proceeding "is in the nature of a civil action."

105
Since

Trial Rule 59(G) requires that the motion be filed sixty days after
the entry of judgment, amendments or additions after the sixty-
day period are disallowed and discounted by the reviewing court.' 06

Thus, the court of appeals held, the motion to correct errors in re-

sponse to a denial of post-conviction relief must be filed within
sixty days of that denial and cannot be amended thereafter.

Finally, the nature of proceedings supplemental to execution

under Trial Rule 69(E) was the topic of examination in the case
of Myers v. Hoover.' 07 In July, 1961, the plaintiff was awarded a
money judgment against defendant by the Industrial Board and
in July, 1971, one decade later, the plaintiff caused an execution to

be issued against the defendant. The execution having been re-
turned unsatisfied, the plaintiff then initiated proceedings supple-

mental to execution. The defendant filed a motion to dismiss based

on the bar of the statute of limitations. The trial court originally

granted the dismissal but thereafter altered its ruling pursuant to

the plaintiff's motion to correct errors.

The court of appeals affirmed this latter ruling of the trial
court. The appellate court held that proceedings supplemental to
execution are not subject to the defense of the statute of limita-

tions for the following reason

:

Given the terms of Trial Rule 69(E) and the proce-
dure thereunder, we are compelled to the conclusion that
in adopting the new rule, our Supreme Court intended

1O4310 N.E.2d 569 (Ind. Ct. App. 1974).
y05

Id. at 570, quoting Hoskins v. State, 302 N.E.2d 499, 501 (Ind. 1973).

Accord, Pettit v. State, 310 N.E.2d 81 (Ind. Ct. App. 1974).
,065ee Ver Hulst v. Hoffman, 286 N.E.2d 214 (Ind. Ct. App. 1972). See

also Harvey, Civil Procedure and Jurisdiction, 1973 Survey of Indiana Law,
7 Ind. L. Rev. 24, 46 (1973).

,07300 N.E.2d 110 (Ind. Ct. App. 1973).



86 INDIANA LAW REVIEW [Vol. 8:69

that proceedings supplemental to execution no longer be
considered new and independent civil actions. Rather,
they appear to be a mere continuation of the original
cause.

108

The court of appeals also noted that, although in proceedings sup-
plemental to execution a motion to correct errors is not required
under Trial Rule 59(G) as a condition precedent to appeal, it was
not error for the trial court to entertain the motion to correct
errors in such a case.

F. Appeal

The role of the motion to correct errors in appellate practice
also received a significant amount of attention this past term. In
the case of Moore v. Sparing 09 on a petition for rehearing, the
appellants argued that Appellate Rule 7.3 provided an alternative
method of determining what shall be included in the record and
that, in fact, Appellate Rule 7.3 was complete in itself and inde-
pendent of the requirements of Appellate Rule 7.2.

The argument was advanced that Appellate Rule 7.3, govern-
ing an appeal based upon an agreed statement, had the effect of
eliminating the requirement of filing a motion to correct errors.

The court of appeals indicated that, whereas this argument might
have merit under federal practice procedure, the result is other-

wise in Indiana state practice. That is, a certified copy of a mo-
tion to correct errors (or an assignment of errors, as the case

may be) is a prerequisite to an appeal and serves the function
of an "appellant's complaint" on appeal. Thus, the court of ap-

peals held that the inclusion of the motion to correct errors is

a jurisdictional act and, hence, is required in all cases, even when
there is an agreed record on appeal.

In addition, in the case of John Dehner, Inc. v. Northern Indi-
ana Public Service Co., uo the defendant filed a motion to dismiss
the plaintiff's complaint, which motion was granted by the trial
court. The plaintiff did not file a motion to correct errors in
the trial court, but rather assigned error in the appellate court.

The court of appeals dismissed the appeal for failure to file the
motion to correct errors and stated that, even in this case, as in
the case of a final judgment upon an agreed record, the appeal-
ing party must file with the trial court a motion to correct errors
as a condition precedent to an appeal. The only exceptions to

108/d. at 113.

1O9302 N.E.2d 825 (Ind. Ct. App. 1973). The original opinion appeared
at 298 N.E.2d 490 (Ind. Ct. App. 1973).

no297 N.E.2d 481 (Ind. Ct. App. 1973).



1974] SURVEY—CIVIL PROCEDURE 87

this requirement, the court noted, are enumerated in Trial Rule
59(G) and none of the exceptions were applicable in this case.

In the case of City of Gary v. Archer"' a punitive damage
award was entered against the City. After closing argument, in-
structions were given which related to those damages; no objec-
tion was made at that time by the City. The first objection to
the punitive damage award was raised in the City's motion to
correct errors. Hence, according to the court of appeals, the ob-
jection was first raised on appeal. The appellate court held that
it was without jurisdiction to consider an objection made for the
first time on appeal. 112 Thus, no timely objection having been
made during the trial, the point was not preserved by raising it
initially in the motion to correct errors.

Davis v. Davis" 3 involved the question of whether a party
who is adversely affected by the granting of a motion to correct
errors in the trial court must, as a condition precedent to appeal

of that ruling, file an additional motion to correct errors alleging
as error the trial court's sustaining of the prior motion. In this

case, the trial court entered a judgment granting the wife a di-
vorce, and she filed a motion to correct errors. The trial court
subsequently granted her motion and entered an amended judg-
ment which adjusted the property division previously ordered by
the court. The husband filed his praecipe for appeal from the
trial court's granting of the wife's motion to correct errors. The
wife moved to dismiss or affirm on the ground that jurisdiction
was lacking in the appellate court because no second motion to
correct had been filed.

Originally, the court of appeals held that it was unnecessary
to interpose a second motion to correct errors.

114 The court based
its conclusion on the language of Appellate Rule 2(A), which re-

quires only that the praecipe follow a "ruling on" the motion, and

upon Appellate Rule 4(A), which permits an appeal from a ruling

either granting or denying the motion to correct errors. Thus,

the court asserted that the party against whom the motion is
granted is sufficiently aggrieved by the ruling to appeal from the

decision on the original motion. 115

However, on rehearing, the court of appeals overruled its
earlier decision and held that the second motion to correct errors
is a prerequisite to appeal when the first motion to correct errors

n, 300 N.E.2d 687 (Ind. Ct. App. 1973).
U2See Aocker v. Buell, 147 Ind. App. 422, 261 N.E.2d 894 (1970) ; Monon

R.R. v. New York Central R.R., 141 Ind. App. 277, 227 N.E.2d 450 (1967).
1,3306 N.E.2d 377 (Ind. Ct. App. 1974).
1,4Davis v. Davis, 295 N.E.2d 837 (Ind. Ct. App. 1973).
" sId. at 839.



88 INDIANA LAW REVIEW [Vol. 8:59

is accompanied by a new entry or judgment. 1 ' 6 The court relied
heavily upon the supreme court's holding in State v. Deprez" 7 a
case decided in the interim between the husband's first appeal and
the rehearing. In Deprez, in similar circumstances, the court found
the second motion necessary, focusing on the fact that Appellate
Rule 4(A) requires that appeals be taken only from final judg-
ments. Thus, following the Deprez rationale, the court of appeals
held that, when the granting or denial of a motion to correct
errors is accompanied by a new entry or judgment consisting of
additional findings, amendments, or other alterations of the prior
judgment, the new entry constitutes the final judgment from
which appeal is taken. Therefore, a motion to correct errors in
response to the new entry must be filed as a prerequisite to ap-
peal.

1 ' 8
Otherwise, the court observed, the appellate court is un-

informed as to the alleged errors in the trial court's ruling on
the original motion, and the trial court is denied the opportunity
to correct those alleged errors.

In the case of Hendrickson v. American Fletcher National
Bank & Trust Co.," 9 the question was whether an order which
sustained a motion to dismiss was an appealable order when no
judgment was entered thereon. 120 In this case, the defendant
moved to dismiss for the following reasons: (1) there was no
jurisdiction over the subject matter, (2) the complaint was barred
by the statute of limitations, and (3) there was a failure to state
a claim upon which relief could be granted. The trial court's order
granting the motion did not specify which of the bases of the

defendant's motion justified dismissal. The court of appeals there-
fore assumed for purposes of review that the trial court based

its ruling on all three points. One of those was the failure to
state a claim upon which relief could be granted. Thus, under a

Trial Rule 12(B)(6) motion, the court noted, the plaintiff had

ten days during which, as a matter of right, he could plead over

n6306 N.E.2d at 379.
117296 N.E.2d 120 (Ind. 1973). In fact, the Deprez case involved an

amended judgment under Trial Rules 52(B) and 59(E). Although the plain-
tiffs filed a motion to correct errors after the original judgment dismissing
the case, they failed to file a second motion after the amended judgment
was entered. Therefore, the supreme court dismissed the appeal.

118Accord, Wyss v. Wyss, 311 N.E.2d 621 (Ind. Ct. App. 1974).
,19301 N.E.2d 530 (Ind. Ct. App. 1973).
,20C/. School City of Gary v. Continental Elec. Co., Inc., 301 N.E.2d 803

(Ind. Ct. App. 1973), wherein the court held that the denial of a motion to
dismiss pursuant to Trial Rule 12(B)(6) was not in itself a final appeal-
able order. The case is discussed further at the text accompanying notes
90-92 supra.



1974] SURVEY—CIVIL PROCEDURE 89

before judgment was entered. 12 ' According to the court of ap-
peals, the granting of the motion to dismiss would become a final
appealable judgment only if, after the expiration of the ten days,
the trial court had made an entry showing that "the plaintiff
having failed to plead over, the cause is dismissed." 122

Here, the trial court made no such entry. The defendant's
motion to dismiss was granted on May 13, 1970. On March 1,
1972, the trial court entered an order which confirmed the action
of May, 1970, and the case was again adjudged dismissed. The
critical distinction in the case was that the May, 1970, entry in
the order book indicated only that the defendant's motion to dis-
miss was sustained. The March, 1972, entry constituted the judg-
ment of dismissal. Therefore, the plaintiff's motion to correct
errors filed on April 28, 1972, was held by the court of appeals
to be a timely motion in view of the fact that no judgment of
dismissal was actually entered until March, 1972.

Two recent cases, Sears Roebuck & Co. v. Hutchens:23 and
Spencer v. Miller,

124 underscored the importance of complying

with the time restrictions for filing a praecipe pursuant to Ap-
pellate Rule 2. The praecipe, designating what is to be included
in the record of proceedings, must be filed with the trial court,
according to Appellate Rule 2(A), within thirty days after the

court's ruling on the motion to correct errors.

In the /Sears case, the praecipe for the record was filed by
appellant on the eighty-ninth day following the ruling on the mo-
tion to correct errors. The court of appeals, pursuant to Appel-
late Rule 14(B), denied the appellant's petition for extension of

time to prepare the record, and the supreme court accordingly

dismissed appellant's petition for transfer. In its opinion, the

supreme court emphasized that, although the praecipe may be
simple and brief—often amounting to nothing more than a one
sentence request—it is essential in all cases that the praecipe be
filed within the thirty-day period. Similarly, stringent adherence

to time restrictions was endorsed in the Spencer case, wherein
the praecipe was filed approximately twelve days after the ex-

piration of the thirty-day period. The court of appeals sustained

the appellee's motion to dismiss the appeal.

,21 Trial Rule 12(B)(8) provides in part:
When a motion to dismiss is sustained for failure to state a claim
under subdivision (B) (6) of this rule the pleading may be amended
once as of right pursuant to Rule 15(A) within ten (10) days after

service of notice of the court's order sustaining the motion and there-

after with permission of the court pursuant to such rule.
,22301 N.E.2d at 531-32.
,23297 N.E.2d 807 (Ind. 1973).
,24297 N.E.2d 491 (Ind. Ct. App. 1973).



90 INDIANA LAW REVIEW [Vol. 8:59

In a related context, the court of appeals upheld the time

restrictions for filing an assignment of errors. In the case of
Means v. Seif Material Handling Co.J*5 review of an Industrial
Board award was sought in the court of appeals. The appellant
on three occasions was successful in obtaining extensions of the
ninety-day period required under Appellate Rule 3(B) for filing
the record. The last petition extended the time to November 10,
1972. Although the record of the proceedings before the Board

was timely filed with the appellate court on that date, the record
did not include an assignment of errors. On March 14, 1973, ap-
pellant filed a petition to "File Omitted Assignment of Errors."

The appeal was dismissed for the reason that the record was
not complete in that it did not contain an assignment of errors

and, therefore, the record was not filed within the time allotted.
The court declared that, absent timely filing of an assignment of
errors, the court has no jurisdiction to review an award of the
Industrial Board.

126
In a concurring opinion, however, Judge

Sullivan argued for recognition of the court's inherent power to
permit belated civil appeals for good cause shown. His discus-

sion includes a comprehensive summary of Indiana case law sup-
porting this proposition.

127

A new application of the assignment of errors was estab-
lished in the case of Inkoff v. Inkoff.

}2a
In this divorce action,

the trial court entered an award of attorneys' fees in order to
enable the appellee to defend the appeal. This entry was effected
after the court had ruled upon a motion to correct errors and
after the appeal was perfected. In the appellate court opinion,
attention was directed to the method by which that entry could
be reviewed. The court of appeals stated that, under Appellate
Rule 7.2, a motion to correct errors is required in all appeals

from final judgments, and a specific assignment of errors is re-
quired in all appeals from interlocutory orders. Neither proce-
dure was directly applicable in the present situation because the
award of attorneys' fees came after the final judgment and was
neither final nor interlocutory in nature. The court proposed that
the gap in the rules be resolved by requiring the assignment of

errors to include the record of any post-judgment proceedings

,25300 N.E.2d 895 (Ind. Ct. App. 1973).
126In dicta, the court suggested that the requirement for the filing of an

assignment of errors from an award by the Industrial Board be abolished
altogether, since the assignment is merely perfunctory and serves no useful

purpose. Id. at 896.

1277d. at 897.

,28306 N.E.2d 132 (Ind. Ct. App. 1974).



1974] SURVEY—CIVIL PROCEDURE 91

from which an appeal is taken and for which a motion to cor-
rect errors is not required.

Appeals from interlocutory orders were considered in a num-
ber of recent cases. In Sekerez v. Board of Sanitary Commission-
ers,^

9 the appellant filed an appeal from an interlocutory order
entered by the trial court. This order stipulated that the suit
would be dismissed unless the appellant posted a bond in the
amount of $5,000,000 payable to the defendant Board in the event
the defendant prevailed. The appellant failed to post the bond,
and the trial court entered a final judgment dismissing the ac-
tion. The appeal was taken solely from the interlocutory order
previously entered.

The court of appeals asserted that it lacked jurisdiction to
entertain the appeal because the interlocutory order did not fall

within any category of interlocutory order set forth in Appellate

Rule 4(B). 130 However, the court decided that jurisdiction over

the appeal would have been proper in the supreme court, which

is empowered to hear appeals from "any other interlocutory order"
under rule 72(b) as adopted by the Indiana General Assembly.

131

This rule, which was not incorporated into the Indiana Rules of
Procedure as adopted by the supreme court, has been held none-

theless effective in furnishing jurisdiction to the supreme court

in such cases.
132

Thus, the appellate court ordered the appeal

transferred to the Indiana Supreme Court pursuant to Appellate

Rule 15 (L). This interpretation was overturned in the supreme

court.
133 The court there held that it was the intent of Appellate

Rule 4(B) that all interlocutory appeals should go to the court of

appeals. Therefore, interlocutory appeals, whether taken under

"rule 72(b)" or Appellate Rule 4, go to the court of appeals.

In the case of Murray v. Murray, 134 the court of appeals de-

cision illustrates the distinction between an appeal of a final

order and an appeal of an interlocutory order, and the relation-

ship of both to the motion to correct errors. In this case, a mo-

tion was filed to modify a custody and support provision of a

previous divorce decree. On June 29, 1973, the trial court issued
its order that custody and care of minor children be awarded the

,29302 N.E.2d 536 (Ind. Ct. App. 1973).
}30

Id. at 537. Cf. Sekerez v. Gary Redev. Comm'n, 301 N.E.2d 372 (Ind.

Ct. App. 1973), wherein, only one month earlier, another district of the court

of appeals took jurisdiction of an interlocutory appeal in a similar case. See

text accompanying note 32 supra.
,31 Ind. Code §34-5-1-1 (Burns 1973).
132See, e.g., Richards v. Crown Point Community School Corp., 256 Ind.

347, 269 N.E.2d 5 (Ind. 1971).
133Sekerez v. Board of Sanitary Comm'rs, 304 N.E.2d 533 (Ind. 1973).
134309 N.E.2d 831 (Ind. Ct. App. 1974).



92 INDIANA LAW REVIEW [Vol. 8:59

husband until further order of the court or until modified by the
hearing on the petition for modification to be held approximately
two months later. On August 21, 1973, the appellant filed a mo-
tion to correct errors directed at the June 29 order. Thereafter,
the matter came to hearing on September 26, 1973, at which time
the trial court denied the motion to correct errors and granted
the petition for modification. Judgment was entered the follow-
ing day. The wife did not file a motion to correct errors addressed
to this judgment but, instead, filed a praecipe with the appel-
late court.

The court of appeals dismissed the appeal. In so doing, it
pointed out that a motion to correct errors, pursuant to Trial
Rule 59(C), must be filed not later than sixty days after judg-
ment. Here, no motion to correct errors was filed at any time
after judgment. Further, the court indicated that the appeal from
the interlocutory order of June 29 was not properly taken since the
wife treated that appeal as an appeal from a final judgment. The
court noted that appeals from interlocutory orders have different
requirements from those established for appeals from final judg-
ments. For instance, in an interlocutory appeal, no motion to
correct errors is required,

135
the appeal must be perfected within

thirty days instead of ninety, 136 and a brief must be filed within
ten days after the filing of the record.

137
Thus, the motion to

correct errors addressed to the interlocutory order was ineffec-
tive and raised no question for appeal.

The types of interlocutory orders which may be appealed
were considered in two recent cases. In Greyhound Lines, Inc. v.
Vanover, }3a an appeal from an order granting an amended re-
quest for production of documents was dismissed. In the case of
Bell v. Wabash Valley Trust Co., 139 an order denying a partial dis-
tribution of funds from a trust was held to be a nonappealable
interlocutory order.

140 Both cases emphasized that appeals from

]35See Ind. R. Tr. P 59(G).
]36See Ind. R. App. P. 3.
' 37See Ind. R. App. P. 8.1.
,38311 N.E.2d 632 (Ind. Ct. App. 1974).
,39297 N.E.2d 924 (Ind. Ct. App. 1973).
,40C/. Hawkins v. Hawkins, 309 N.E.2d 177 (Ind. Ct. App. 1974), wherein

it was held that a sale order in a partition proceeding, although denominated
"interlocutory" under Ind. Code §32-4-5-4 (Burns 1973), was in fact a final
appealable order. However, the case of In re Estate of Barnett, 307 N.E.2d

490 (Ind. Ct. App. 1974), qualified such a holding to the effect that an order

of partition is not an appealable final judgment if the order specifies that a

further order making final distribution is to be forthcoming. The court noted
that "[a]s a general rule, a final judgment which is appealable is one which

disposes of all of the issues as to all of the parties and puts an end to the



1974] SURVEY—CIVIL PROCEDURE 93

interlocutory orders must be authorized specifically by the Indi-
ana Constitution, the statutes, or the court rules. 141 Moreover,
any authorization is to be strictly construed. 142 Since, in neither
case, was the order appealed from among the genre of interlocu-
tory orders authorized by Appellate Rule 4(B), the appeals were
held improper.

The requirements for a petition to transfer pursuant to Ap-
pellate Rule 11 (B) were discussed in the case of Baker v. Fisher.' 43

The supreme court, noting that the petition for transfer in this
case did not meet any of the grounds contained in the rule, de-

nied the transfer. The court stated that a petitioner must allege
facts with ample particularity in order to bring his petition within

one of the stipulated grounds for transfer. The petition in this
case merely asserted, in general terms, that the court of appeals

erred in its determination of the facts. This assertion was found
insufficient. The supreme court noted that it, nonetheless, has
the power to consider a petition for transfer which does not fall

within the categories established by Appellate Rule 11(B). How-
ever, the court went on, the granting of such a petition is a rare

occurrence and special need must be amply demonstrated to war-

rant this unusual dispensation.

In conclusion, mention must be made of a common error
which recurred in numerous cases this past term. 144 Succinctly

stated, the rule is firmly established that a negative judgment

against the party bearing the burden of proof below cannot be

attacked on appeal on the ground that the evidence is insufficient

particular case." Id. at 494, quoting Thompson v. Thompson, 286 N.E.2d 657,
659 (Ind. 1972).

,41 Anthrop v. Tippecanoe School Corp., 257 Ind. 578, 277 N.E.2d 169

(1972) ; Neal v. Hamilton Circuit Court, 248 Ind. 130, 224 N.E.2d 55 (1967)

;

State ex rel. Sanders v. Circuit Court, 243 Ind. 343, 182 N.E.2d 781 (1962)

;

Haag v. Haag, 240 Ind. 291, 163 N.E.2d 243 (1959) ; Seaney v. Ayres, 238
Ind. 493, 151 N.E.2d 295 (1958) ; Chapman v. Chapman, 231 Ind. 556, 109
N.E.2d 724 (1953).

142 Seaney v. Ayres, 238 Ind. 493, 151 N.E.2d 295 (1958) ; Chapman v.
Chapman, 231 Ind. 556, 109 N.E.2d 724 (1953).

143296 N.E.2d 882 (Ind. 1973).
]44See, e.g., Pettit v. State, 310 N.E.2d 81 (Ind. Ct. App. 1974) ; Danes

v. Automobile Underwriters, Inc., 307 N.E.2d 902 (Ind. Ct. App. 1974);

Hays v. Hartfield L-P Gas, 306 N.E.2d 373 (Ind. Ct. App. 1974) ; Inkoff v.
Inkoff, 306 N.E.2d 132 (Ind. Ct. App. 1974); Hippensteel v. Karol, 304

N.E.2d 796 (Ind. Ct. App. 1973); Yellow Mfg. Acceptance Corp. v. Voss,

303 N.E.2d 281 (Ind. Ct. App. 1973); Lindenborg v. M & L Builders &
Brokers, Inc., 302 N.E.2d 816 (Ind. Ct. App. 1973); Apple v. Apple, 301

N.E.2d 534 (Ind. Ct. App. 1973).



94 INDIANA LAW REVIEW [Vol. 8:94

to sustain the decision of the trial court.
145 An appeal from a

negative verdict or judgment may, on the other hand, be raised
on the ground that the decision is contrary to law, but here too
the standard of review is rigid—only if the evidence is without
conflict and leads to only one conclusion, and the trial court
reached a contrary conclusion, will the decision be disturbed as

contrary to law.
146 Upon such review, the appellate court must

consider only the evidence most favorable to the decision of the
trial court.

147 Thus, the bases of review of a negative judgment
are limited and the standards applied are stringent. Indiana prac-
titioners are reminded, however, that appeal of a negative judg-

ment is unavailing on the ground of insufficiency of the evidence.

V. Constitutional Law

James W. Torke*

The following discussion attempts to highlight court decisions,
both federal and state, which have involved both constitutional

issues and Indiana law. As could have been expected, the cases
reflect a general concentration on problems of free speech, free

press and equal protection.

A. The First Amendment

For a few years now, the general public has been acquainted
with the controversy involving an unofficial student newspaper,

the Corn Cob Curtain. During the 1971-1972 school year, four
issues of the paper were published in various Indianapolis high

schools. The distribution of a fifth issue was blocked by school
authorities upon the grounds that the Corn Cob Curtain was ob-
scene. Plaintiffs, as representatives of a class of high school stu-

dents under the jurisdiction of the Indianapolis school system,

,45Eouser v. Board of Comm'rs, 252 Ind. 312, 247 N.E.2d 675 (1969)
State Farm Life Ins. Co. v. Spidel, 246 Ind. 458, 202 N.E.2d 886 (1964)
Engelbrecht v. Property Developers, Inc., 296 N.E.2d 798 (Ind. Ct. App. 1973)
Columbia Realty Co. v. Harrelson, 293 N.E.2d 804 (Ind. Ct. App. 1973) ; Hiatt

v. Yergin, 284 N.E.2d 834 (Ind. Ct. App. 1972).
,46Senst v. Bradley, 275 N.E.2d 573 (Ind. Ct. App. 1971). Accord, Ed-

wards v. Wyllie, 246 Ind. 261, 203 N.E.2d 200 (1964) ; Jones v. Greiger, 130
Ind. App. 526, 166 N.E.2d 868 (1960).

,47Jones v. State, 244 Ind. 682, 195 N.E.2d 460 (1964) ; Senst v. Bradley,

275 N.E.2d 573 (Ind. Ct. App. 1971); Waiting v. Brown, 139 Ind. App. 18,
211 N.E.2d 803 (1965).

Associate Professor of Law, Indiana University Indianapolis Law
School. J.D., University of Wisconsin, 1968.