Indiana Law Review


Oe INDIANA LAW REVIEW [Vol. 9:66

fication provision was added to the Not-for-Profit Corporation

Act in 1974 and the language is basically that of the pre-1973

General Corporation Act provision. Similarly, the inconsistencies

contained in the provision authorizing the purchase of "director

and officer" insurance by not-for-profit corporations were not

eliminated.
''•'

FV. Civil Proeedisrc and Jurisdiction

William F. Harvey"^

A, Jurisdiction and Service of Process

In Baker v, Sihsmann^ service of process by means of the

nonresident motorist statute^ was challenged on due process
grounds. Plaintiff Sihsmann filed suit on May 30, 1973, against
Baker for damages arising from an automobile accident. Sihsmann

elected to serve Baker through the Indiana secretary of state,

who received the summons on June 1, 1973. The secretary of state
mailed the summons on June 4 and Baker received it on June 11.
Sihsmann defaulted Baker on July 3, 1973, and took judgment
against him two days later.

The court of appeals reversed. The summons sent to Baker
was a printed form which advised him that he had 20 days, be-
ginning the day after receipt, to respond to the complaint. The
court held that this wording was not reasonably calculated to
give Baker actual notice of the proceeding and an opportunity to
be heard, and so violated fourteenth amendment due process.^
The court stated that the effect of the summons was to mislead

^'/d. § 23-7-1.1-4 (b) (10) (Burns Supp. 1975). For a discussion ef the
1973 amendments to the General Corporation Act see Galanti, CorporatioTiSf
1973 Survey of Indiana Law, 7 Ind. L. Rev. 77, 103-09 (1973) ; for discussion
of the 1974 amendments to the Not-for-Profit Corporation Act see Galanti,
Business Associations, 197U Survey of Indiana Law, 8 Ind. L. Rev. 24, 54-59
(1974).

:

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

The author wishes to extend his appreciation to Paul F. Lindemann for his
assistance in the preparation of this discussion.

'315 N.E.2d 386 (Ind. Ct. App. 1974).
^INB. Code §9-3-2-1 (Burns 1973). The statute provides that the oper-

ation of a motor vehicle by a nonresident or by a resident who thereafter be-
comes a nonresident shall be deemed equivalent to an appointment by such
person of the secretary of state as his attorney for service of process for
actions growing out of motor vehicle collisions in which the nonresident is
involved.

""See Milliken v. Meyer, 311 U.S. 457, 463 (1940).



1975] SURVEY—CIVIL PROCEDURE 67

Baker regarding the time that he had to respond to the com-

plaint. The court did not hold that service of process by means
of the nonresident motorist statute necessarily violated due process.

If the summons had advised Baker that the time to respond would
be computed from the date of service upon his agent, the secretary^

of state, the default judgment would have been affirmed.

Baker also argued that he was entitled to an additional three
days because the summons was served by mail,'* as well as one
additional day because the 23rd day would then fall on the Fourth

of July.^ Sihsmann argued that service was complete when the
secretary of state was personally served by the Marion County
deputy sheriff. The court recognized that both arguments had
merit, but allowed the additional time under the facts of the case.

The determining factor in allowing the extension of time was
that the mails were utilized in serving process.*

Ball Stores, Inc. v. State Board of Tax Commissioners^ also
involved the computation of time under Trial Rule 6(A).

A taxpayer attempted to appeal to a superior court a final
administrative determination of the taxpayer's property assess-

ment. The final determination was issued on May 11, 1972, and
the taxpayer's complaint was filed with the trial court on June
7, 1972. The taxpayer sent the summons and complaint by certi-
fied mail on June 8, but the board did not receive them until June
12, after the statutory 30-day period for appeal had expired.^
However, the 30th day was June 10, a Saturday. After one
change of venue, the trial court dismissed the complaint as not
timely, and the court of appeals reluctantly affirmed.^

The supreme court granted a petition for transfer and re-
versed. The court held that the applicable statute was silent as
to when the 30-day period expires when receipt of notice falls
on a Saturday, Sunday, or holiday, and that therefore the pro-

^IND. R. Tr. P. 6(E).

"Trial Rule 6(A) states that the last day of the period will not be included

if it is a Saturday, Sunday, legal holiday, or a day the office in which the act

is to be done is closed during regular business hours.

^See State ex rel. Sargent & Lundy v. Vigo Superior Court, 296 N.E.2d
785 (Ind. 1973) (Arterburn, J.), where the court held that "Trial Rule 6(E)
very clearly provides an additional three (3) days if reliance is placed on the

mail to give notice." Id, at 786.

73I6 N.E.2d 674 (Ind. 1974).
®The statute provides that "[a]t any time within thirty (30) days after

the board gives notice of its determination, an appeal may be taken by filing
a written notice with the board asking for such appeal and designating the

court to which such appeal is being taken . . . ." Ind. Code § 6-1-31-4 (Bums
1972).

9307 N.E.2d 106 (Ind. Ct. App. 1974), noted in Taylor, Administrative

Law, 197U Survey of Indiana Law, 8 Ind. L. Rev. 12, 21-22 (1974).



6S INDIANA LAW REVIEW [Vol. 9; 66

visions of Trial Rule 6(A) would control/^ Dismissal of the suit,

the court stated, would be contrary to the expressed legislative

intent that the taxpayer act within the prescribed time limit. The

court cited with approval the opinions of two Indiana authors

that the provisions of the trial rules regarding computation of

time govern unless a statute expressly provides its own procedure."
The rule of Ball Stoi'es was followed in Jenkins v. Yoder,'''

An automobile accident occurred on December 18, 1971, and a
complaint for personal injuries was filed on December 19, 1973.

The defendant filed a motion for summary judgment, asserting
that the claims was barred by the two year statute of limitations

for torts. '^ The trial court granted the motion. The court of
appeals affirmed, following the Ball Stores rule that the ap-

plicable trial rule controls if a statute is silent as to how a time
limitation should be computed. Following the provisions of Trial

Rule 6(A), the court held that the statute of limitations began

to run on December 19, 1971, and expired at midnight on De-
cember 18, 1973. As the latter date did not fall on a Saturday,
Sunday, holiday, or a day on which the office was closed, the
suit was barred by the statute.

The Ball Stores rule also did not help the plaintiff in Wilks
V. First National Bank,^"^ The plaintiff was allegedly injured
while at her job on April 8, 1970. A two year statute of limita-
tions applies to workmen's compensation suits ;'^ thus her claim
expired on April 8, 1972, a Saturday. Plaintiff mailed her claim

to the Industrial Board on Monday, April 10, 1972, and the board
received it on April 12. The board denied her claim as not timely.
The court of appeals agreed. It recognized that the rule of Ball
Stores required an extension of time to the next working day,
which was April 10. However, the statute required that the
notice be "filed" within two years, ^* which contemplated actual
receipt by the board within that period.'^ As the claim was
not actually received until April 12, it was not timely.'®

^°5ee note 5 supra.

"1 A. BoBBiTT, Works' Indiana Practice §1.4, at 15 (5th ed. 1971); 1
W. Harvey, Indiana Practice 437 (1969).

^^324 N.E.2d 520 (Ind. Ct. App. 1975).
'^Ind. Code §34-1-2-2 (Burns 1973).
'^326 N.E.2d 827 (Ind. Ct. App. 1975).
'^IND. Code § 22-3-3-3 (Burns 1974).

''The court relied primarily on language in a prior Indiana case which
defined filing as delivery to the proper officer and receipt by him to be kept
on file. Lawless v. Johnson, 232 Ind. 64, 111 N.E.2d 656 (1953).

'*The court refused to apply the definition of Trial Rule 5(E) to the case.
This rule states that filing by registered or certified mail is complete on mail-



1975] SVRVEY--CIVIL PROCEDURE 69

Squarcy v. Van Horne''^ raised the question whether a
court could dismiss for lack of jurisdiction when a timely change
of venue motion had been filed. The will and two codicils of the

deceased were admitted to probate on September 1, 1972. On
April 3, 1973, seven months and two days later, the contestor

filed her complaint to set aside probate of the codicils on vari-

ous grounds. In response appellees filed a motion to dismiss, as-

serting that the action was not filed within the statutory 6-month
period. ^° Contestor then filed a timely motion for a change of

venue. The trial court heard arguments on the motions, con-
sidered the jurisdictional motion first, and dismissed the action.

On appeal the contestor argued that at the time the trial
court sustained the motion to dismiss, it lacked jurisdiction to do

anything but grant the requested venue change. The court of
appeals rejected this argument, holding that determination of an

alleged lack of jurisdiction takes precedence over ruling on a

requested change of venue. The venue rules recognize that there
are rulings that must be made between the time of a motion for
a change of venue and the time the court rules on the motion.^^
Furthermore, when the court lacks subject matter jurisdiction,
the court is without power to do anything in the case except
enter an order of dismissal. ^^ Therefore, since the 6-month re-

quirement is jurisdictional" and no excuse appeared for failure
to comply with the statute, the court of appeals held that dis-
missal of the action was proper.

In State ex rel, Leffingwell v, Superior Court No, 2,^^ an orig-
inal action for a writ of prohibition was brought in the supreme
court. In that case a 15-year-old girl and an 18-year-old boy had
applied to the Blackford County Court for a waiver of the mini-
mum age for marriage. The girl was not then pregnant, but
liad already given birth to a child fathered by the boy. The judge
ordered the clerk to issue a marriage license to the couple. Upon
the clerk's refusal to comply with the order, the judge cited the

ing. The court cautioned that no trial rule besides 6(A) has been held by the
supreme court to be applicable to administrative proceedings. 326 N.E.2d at 831.

^'321 N.E.2d 858 (Ind. Ct. App, 1975).
2°lND. Code § 29-1-7-17 (Bums 1972).
2^ Trial Rule 78 states in part:

Nothing in this rule shall be construed as divesting the original court

of its jurisdiction to hear and determine emergency matters between
the time that a motion for change of venue to another county is filed
and the time that the court grants an order for the change of venue.
=2321 N.E.2d at 858-59, citing State ex rel Ayer v. Ewing, 231 Ind. 1, 106

N.E.2d 441 (1952).
"321 N.E.2d at 860, citing Evansville Ice & Cold Storage Co. v. Winsor,

148 Ind. 682, 48 N.E. 592 (1897).
2^321 N.E.2d 568 (Ind. 1974).



70 INDIANA LAW REVIEW [Vol. 9:66

clerk for contempt. The supreme court granted the writ of

prohibition and mandated the respondent court to dismiss the

charge of contempt against the clerk. The court held that the

respondent court had no jurisdiction to issue the order as the girl

was not pregnant at the time of application for the license.''^ Since

the court had no jurisdiction to issue the order, the clerk could

not be held in contempt for failure to obey it.-*

In Foster v. County Commissioners
y^'^ the court of appeals

reaffirmed the principle that a tort claimant of a county must,

as a matter of jurisdiction, file his claim with the county auditor

prior to commencing suit, Foster filed suit for his personal

injuries suffered when his vehicle hit a chuckhole on one of
the county highways. After discovery, the trial court entered

summary- judgment in favor of the county because of Foster's

failure to file his claim with the county as required by statute.'^

The court of appeals affirmed the grant of summary judgment. It
cited several old Indiana cases holding that notice to the count>^

is required prior to commencing suit against it. The court de-
clined Foster's invitation to overrule those cases.-' The county's
10-month delay in raising lack of notice could not help Foster

since the county could not waive statutory subject matter juris-

diction. The Foster decision has been overruled in part by Thomp-
son V. City of Au7'ora,^° a case v/hich is discussed in the next

section.

^^IND. Code § 31-1-1-1 (Bums Supp. 1975) requires that a female who is
under 17 years old be pregnant before the judge can authorize issuance of a

marriage license, provided the female is at least 15 years old. This section also

requires that the putative father and the pregnant female indicate to the judge

a desire to marry and that the parents' or guardians' consent be obtained.

^*The supreme court apparently issued the writ under Appellate Rule
4(A) (5), which states that the supreme court has exclusive jurisdiction of the
supervision of the exercise of jurisdiction by the other courts of the state,
including the issuance of writs of mandate and prohibition.

2^325 N.E.2d 223 (Ind. Ct. App. 1975).

=°IND. Code §17-2-1-1 (Burns 1974) provides:

Whenever any person or corporation shall have any legal claim against
any county in the state of Indiana, they shall file such claim with the
county auditor, and be by him presented to the board of county commis-
sioners.

Indiana courts are deprived of jurisdiction of claims if this procedure is not

followed. Id. § 17-2-1-4.

"Board of County Comm'rs v. Nichols, 139 Ind. 611, 38 N.E. 526 (1894)

;

Bass Foundry & Mach. Works v. Board of County Comm'rs, 141 Ind. 68, 32
N.E. 1125 (1893) ; Board of County Comm'rs v. Leggett, 115 Ind. 544, 18 N.E.
53 (1888); Bass Foundry & Mach. Works v. Board of County Comm'rs, 115
Ind. 234, 17 N.E. 593 (1888).

^=325 N.E.2d 839 (Ind. 1975).



1975] SURVEY—CIVIL PROCEDURE 71

B, Pleadings and Pretrial Motions

In Barrow v. Weddle Brothers Construction,^' the plaintiff

brought an action for abuse of process and defamation of char-

acter. On appeal from a negative judgment, plaintiff argued that
he was entitled to judgment as a matter of law. The defendant re-

sponded by contending that the complaint did not accord him

notice of the plaintiff's two theories of recovery and that the

statute of limitations barred both theories. The court of appeals

refused to allow the defense of the statute of limitations since the

defendant did not specifically plead it as required by Trial Rule

8(C). The court then decided that the complaint was sufficient to
present both theories. Barroiv demonstrates the need to plead speci-

fically the defenses required by Trial Rule 8(C) if they have any

possible application to the plaintiff's claim ; otherwise the defenses

are waived.

In Thompson v. City of Aurora,^^ the Indiana Supreme Court
considered whether compliance with the statutory requirements

for notice to a city of claims against it^^ need be specifically pleaded

by the plaintiff as an element of his claim for relief. The plaintiff
sued the city of Aurora for damages resulting from the destruction
of the plaintiff's home by a natural gas explosion and fire. At the
close of plaintiff's evidence, the defendant moved for a judgment
on the evidence on the grounds that the plaintiff had failed to in-
troduce proof that the statutorily required notice had been given

to the city. The trial court sustained the defendant's motion, and
the court of appeals affirmed,^'^ citing City of Indianapolis v.

Evans^^ as controlling authority for the proposition that plaintiff

was required to plead and prove that notice was given.
In reversing, the supreme court held that the notice required

by statute was a procedural precedent that need not be specifically
averred in the complaint; that the plaintiff's failure to give the
required notice was a defense that must be raised either by motion
or responsive pleading ;'* and that if the defendant does not raise

^'316 N.E.2d 845 (Ind. Ct. App. 1974).
==325 N.E.2d 839 (Ind. 1975).

^^ch, 80, § 1, [1935] Ind. Acts 235, as amended Ind. Code §§ 34-4-16.5-1 to
-18 (Burns Supp. 1975). The current notice statute provides that a claim
against the state or a political subdivision thereof is barred unless notice is

filed with (1) the attorney general and the state agency involved in the case
of a claim against the state, or (2) the governing body of the particular politi-
cal subdivision of the state when the claim is against the subdivision within
180 days after the loss occurred. Ind. Code §§ 34-4-16.5-6, -7 (Burns Supp.
1975).

3^313 N.E.2d 713 (Ind. Ct. App. 1974).
3^216 Ind. 555, 24 N.E.2d 776 (1940).
3^See Ind. R. Tr. P. 12(B).



72 INDIANA LAW REVIEW [Vol. 9:66

the issue of notice, the plaintiff does not have to prove that notice

was in fact given. The court went on to state that Trial Rule 9 (C)
^^

controls those cases, such as the present case, in which the giving

of a statutorily required notice is a true condition precedent to the

action. Thus, in such cases, the plaintiff could aver generally the

performance of all conditions precedent, and the defendant would

have to specifically deny the performance of the condition prece-

dent by the plaintiff ; a general denial would be insufficient to raise

the issue of notice. In reaching its decision, the court overruled the

series of cases beginning with Touhey v. City of Decatur^^ and
ending with City of Indianapolis v. Evans'^'^ insofar as the pleading

and procedural rules set forth therein were concerned.

The decision in Thompson came about 21^ weeks after the
decision in Foster v. County Commissioners,^^ discussed above. In

Foster the plaintiff failed to give notice to the defendant county

as required by statute."^^ The court of appeals ruled that the county
had not waived its right to complain of the lack of notice even

though more than 10 months had passed since the suit was filed
and the defendant had long since filed its answer. The court of
appeals reasoned that the filing of the claim with the county consti-

tuted a jurisdictional precondition for the trial court's entertain-

ment of the action. Absent filing of the claim, there was a lack of
subject matter jurisdiction which could be raised at any time dur-
ing the proceeding."^ Thompson clearly overruled the remaining
language in Foster concerning the prerequisite of notice to the

filing of a suit against a municipality, as distinguished from notice
requirements which are preconditions to the jurisdiction of a trial
court.

^ 'Trial Rule 9(C) provides:
In pleading the performance or occurrence of promissory or non-
promissory conditions precedent, it is sufficient to aver generally that
all conditions precedent have been performed, have occurred, or have
been excused. A denial of performance or occurrence shall be made
specifically and with particularity, and a denial of excuse generally.

^nib Ind. 98, 93 N.E. 540 (1911). Touhey is typical of the line of cases

overruled by Thompson. The plaintiff in Touhey suffered a demurrer as a con-

sequence of his failure to allege that he had given written notice of his claim

to either the clerk, mayor, or a member of the common council of the defendant
municipality. The trial court*s action in sustaining the demurrer was affirmed

on appeal and plaintiff was thus denied recovery for his injuries, allegedly

the result of his falling through an opening in a public sidewalk.

^'216 Ind. 555, 24 N.E.2d 776 (1940).

^^325 N,E.2d 223 (Ind. Ct. App. 1975).

*^See p. 70 supra.

"^^The defense of failure to state a claim upon which relief can be granted

can be raised for the first time at trial. Ind. R. Tr. P. 12(H) (2).



1975] SURVEY—CIVIL PROCEDURE 78

During the past year the court of appeals again considered the

standard by which the sufficiency of the pleadings is to be deter-

mined when attacked by a motion to dismiss for failure to state a
claim upon which relief could be granted. In Gentry v. United Slate,

Tile & Construction Roofers, Local 250,"^^ the plaintiff-subcon-
tractor sued the primary contractor and a labor union claiming

damages as a result of the union^s attempt to compel the primary
contractor to breach its contract with the plaintiff because the

plaintiff employed nonunion laborers. The trial court dismissed
the complaint pursuant to Trial Rule 12(B) (6) due to the plain-

tiffs failure to allege that the parties were engaged in industry
or activity affecting interstate commerce and to specifically identi-
fy the section number of the United States Code under which the
plaintiff was proceeding.

The court of appeals reversed, citing the supreme court's deci-
sion in State v, Rankin,'^'^ which held that a complaint is not subject

to dismissal unless it appears to a certainty that the plaintiff would

not be entitled to relief under any set of facts. The Gentry court
was unable to say as a matter of law that under no circumstances
could the plaintiff show that the parties were engaged in industry
or activity affecting interstate commerce. The court also said that
to require the plaintiff to specifically set forth in its complaint the

sections of the United States Code under which it was proceeding
would be tantamount to requiring a statement in the complaint of
the theory upon which the claim for damages was based. Under
the liberal rules and spirit of notice pleading, such a statement is
not required in order to withstand a motion to dismiss under Trial

Rule 12(B)(6).

The timeliness of a defendant's demand for a jury trial was
the issue in Houchin v, Wood.^^ The defendant against whom a
paternity declaration was sought filed a request for a jury trial 43
days after receiving notice of the pending action. The court of ap-
peals ruled that the request was not timely because the issues in
a paternity action are closed by operation of law with the filing of
a petition.^* According to Trial Rule 38(B), the demand for a jury
trial must be filed vnthin 10 days after the first responsive plead-
ing, at which time the issues in a case would normally be closed;
if no responsive pleading is required, then demand must be filed
within 10 days after such pleading otherwise would have been re-
quired. Trial Rule 6(C) requires that a necessary responsive plead-

^^319 N.E.2d 159 (Ind. Ct. App. 1974).
^^260 Ind. 228, 294 N.E.2d 604 (1973), noted in Harvey, Civil Procedure

and Jurisdiction, 1973 Survey of Indiana Law, 7 Ind. L. Rev. 24, 25 (1973).
^^317 N.E.2d 911 (Ind. Ct. App. 1974).
^""See Roe v. Doe, 289 N.E.2d 528 (Ind. Ct. App. 1972).



74 INDIANA LAW REVIEW [Vol. 9:66

ing be filed ^vithin 20 days after service of the prior pleading.

Therefore, the request for a jury trial in a paternity action must

be filed within 30 days after service of the complaint; that is, the

sum of the 20 days allov^ed by Trial Rule 6(C) and the 10 days
allowed by Trial Rule 38(B).

A void in the appHcation of Trial Rule 79 was judicially filled
by the supreme court in Castle v. Fleenor,^^ A motion for a change
of venue from a regular judge was filed under Trial Rule 76. A
special judge was qualified after being selected from the first panel

that was named pursuant to the procedure set forth in Trial Rule

79(3). Thereafter that special judge died, and a petition for the

ajDpointment of a special judge to replace the deceased judge was
filed in the supreme court. In granting the petition, the court ob-

served that the Indiana Rules of Trial Procedure did not provide

a procedure for the selection of an alternate judge in the particular

situation before the court. Trial Rule 79(3) provides that the

regular judge shall appoint a panel from which a special judge shall
be selected, and Trial Rule 79(8) provides for this procedure to be
repeated if the person selected fails to appear and qualify within
10 days. Trial Rule 79(12) provides for the selection of a new
judge to be made by the supreme court when the person selected
under Trial Rule 79(8) either fails to qualify or becomes disquali-
fied. There was, observed the court, no provision in the rules cov-
ering the situation where the person selected under Trial Rule

79(3) qualifies and subsequently becomes disqualified. Accord-
ingly, the court granted the petitioner's request and appointed an
alternative judge to sit in the pending case.

In State ex rel. Chambers v. Jefferson Circuit Court,*^ an
original mandamus action in the supreme court, the court ruled that
a responsive pleading is not required following the filing orf the
complaint in a condemnation action. Therefore, under Trial Rule
76(3) relators in the case had 30 days from the filing of the com-
plaint in the condemnation proceeding within which to file a mo-
tion for a change of venue from the regular judge.^' The court
overruled the decision in State ex reh Indianapolis Power & Light
Co. V, Daviess Circuit Court^° to the extent that it stood for the
proposition that the filing of a complaint in an eminent domain
action does not close the issues for purpose of a Trial Rule 76
motion.

-•^318 N.E.2d 567 (Ind, 1974).
^'316 N.E.2d 353 (Ind. 1974).

'''Trial Rule 76(3) provides that parties have 30 days from the filing of
the case to request a change of venue in all cases when no pleading is required
by the defendant to close the issues.

5°246 Ind. 468, 206 N.E.2d 611 (1965).



1975] SURVEY—CIVIL PROCEDURE 75

State ex rel. Krochta v. Superior Court^' involved the timeli-

ness of a Trial Rule 76(1) change of venue motion. The case orig-
inated as a class action for mandate and damages to require the
Lake County Commission on County Redistricting to comply v^ith
statutory requirements^^ in conducting the 1974 primary election.

The defendant state and county officers filed motions to dismiss,
and the trial court scheduled a hearing on the motions. When the
hearing date arrived, the defendants withdrew their motions to
dismiss, A hearing on the merits was then had as to the state offi-
cers, but a continuance was granted as to the county officers.
Thereafter the county officers moved pursuant to Trial Rule 76(1)
for a change of venue from the judge. The trial judge denied the
motion and issued an order of mandate, thereby giving the plain-
tiffs the relief they sought. After unsuccessfully seeking a stay of

the order in the trial couii:, the defendants filed an original action
of mandate and prohibition in the supreme court, seeking to set
aside all action taken by the trial court after the motion for a
change of venue was made.

The supreme court denied the requested writ and confirmed
the propriety of the trial court's denial of the motion for a change

of venue. The court ruled that the county officials waived their
right to an automatic change of venue by failing to object at the
commencement of the initial hearing on the merits that was con-
ducted as to the state officials. The court also grasped the oppor-
tunity to reaffirm the disfavor with which original actions for
extraordinary writs are judicially viewed. It noted that such writs

are not vehicles for circumventing the normal appellate process

and that they should be granted only when a denial would result in
extreme hardship.^^

In Marsh v. Lesh^^ the plaintiff sued to recover damages for
personal injuries sustained in a parking lot collision. The defendant

moved for a change of venue from Lake County to Porter County.
The original trial court granted the motion with the consent of
plaintiff's attorney. Thereafter the plaintiff commenced discovery
in the transferree court. Approximately nine days before the

scheduled trial, the plaintiff filed a motion to expunge the order

of the Lake Superior Court granting the change of venue, alleging
that the automatic change of venue provisions of Trial Rule 76

were unconstitutional. This motion was overruled by the Porter
Superior Court. On appeal from a negative judgment, the plaintiff
again sought to assert the unconstitutionality of the venue provi-

^'314 N.E.2d 740 (Ind. 1974).
^^IND. Code §§ 17-1-1-1 et seq, (Burns 1974).
"Ind. R. p. Orig. A. (A).
^^326 N.E.2d 626 (Ind. Ct. App. 1975).



76 INDIANA LAW REVIEW [Vol. 9:66

sions. The court of appeals cited Center Totvnship v. Board of
Covimissioners^^ as controlling authority in holding that the plain-

tiff's consent to the change of venue and his subsequent discovery

activities in the transferee court estopped him from challenging
the propriety of the transferee court's venue.

Marsh establishes the rule that in order to challenge the venue

of the court to which a case is transferred pursuant to a Trial Rule

76 motion, a party must do so at the time the motion for the change

of venue is before the potential transferror court; otherwise, he

will have waived any objection to the transfer. Of course, nothing

in the court's opinion precludes a party from asserting a lack of
subject matter jurisdiction at any time in the proceedings in either

the transferror or transferree court. The decision in Marsh is con-
sistent with that of State ex rel. Hepler v. SivpeHor Cotirt^'' where-

in the relatrix's petition for a writ of mandate and prohibition was
denied. The court stated that the relatrix's consent to the trial
court's setting of the matter for trial constituted a waiver of the

right to an automatic change of venue from such court.

C. Pretrial Procedures and Discovery

In Scott County School District #1 v. Asher,^^ the court of
appeals dealt with the question of whether a trial court's failure

to enter an order pursuant to Trial Rule 16 (J) ^® reciting the action

taken at a pretrial conference constitutes reversible error. The
court of appeals agreed with the appellant that the trial court

might have erred in failing to enter a pretrial order. However, the
court held that any error was, in this particular case, harmless
error as defined in Trial Rule 61.^' The court observed that the
record clearly showed that no agreement existed between the par-
ties concerning the limitation of issues for trial. Absent such an
agreement, a failure by the trial court to enter a pretrial order
limiting the issues for trial did not substantially prejudice the

rights of the parties.

55110 Ind. 579, 10 N.E. 291 (1887).
~~ ~

^^328 N.E.2d 218 (Ind. 1975).
^^312 N.E.2d 131 (Ind. Ct. App. 1974).
^^Trial Rule 16 (J) provides in part:
The court shall make an order which recites tha action taken at the
[pretrial] conference, the amendments allowed to the pleadings, and
the agreements made by the parties as to any of the matters considered
which limit the issues for trial to those not disposed of by admissions
or agreement of counsel, and such order when entered shall control
the subsequent course of action, unless modified thereafter to prevent
manifest injustice.
^ 'Trial Rule 61 in part provides: "The court at every stage of the proceed-

ing must disregard any error or defect in the proceeding which does not affect
the substantial rights of the parties."



1975] SURVEY--CIVIL PROCEDURE 77

In Bramblett v, Lee*" the court of appeals ruled that the client

was bound by a stipulation of paternity made orally by counsel in
a pretrial conversation with the trial judge. The court stated that
the client's redress would come, if at all, from the attorney who
made the stipulation. Bramblett emphatically demonstrates the
very great authority that an attorney has to enter into agreements

and to make judicially recorded entries that will be binding on the
client.

During the past year, Trial Rule 26 and the other rules con-

cerning discovery procedures that are available in civil actions

again provided a fertile field for litigation. In State v, Frye^' the

court of appeals considered whether a party seeking to compel

discovery in an administrative proceeding must first seek the aid
of the administrative agency before resorting to the enforcement

mechanisms provided by a court of law under Trial Rule 37. The
appellee, a chaplain at the Rockville Training Center in Parke

County, filed a grievance appeal with the State Employees' Appeals

Commission, In pursuing the appeal, the plaintiff's attorney sub-

mitted questions to the officials at the Center that were deemed
by the parties to be "interrogatories." The state agency refused
to order the Center officials to furnish answers to the interroga-
tories. The plaintiff then requested the Parke County Circuit Court
to order under Trial Rule 37(A) (2)*^ that the officials respond
to the interrogatories. The circuit court decreed that the officials
should furnish the information.

The court of appeals reversed. It ruled that the trial court
could not properly entertain the action to compel discovery until

such time as the state administrative agency had ordered that the
interrogatories be answered and such order had not been obeyed
by the party against whom discovery was sought. At that point
the party filing the interrogatories could go before the appropriate
court and seek the relief provided by Trial Rules 28 (F)^^ and
37(A) (2). However, it was incumbent upon the appellee in this
case to exhaust his administrative remedies prior to seeking the

<^°320 N.E.2d 778 (Ind. Ct. App. 1974).
6^315 N.E.2d 399 (Ind. Ct, App. 1974).
^^Trial Rule 37(A) (2) provides in part: "If ... a party fails to answer

an interrogatory submitted under Rule 33 . . . the discovering party may apply
for an order compelling an answer ....*'

^^Trial Rule 28(F) provides:
Whenever a hearing before an administrative agency is required par-
ties shall be entitled to all discovery provisions of Rules 26 through 37.

Protective and enforcement orders shall be issued by a court of the

county where discovery is being made or where the hearing is to be
held. Leave of court shall not be required as provided in Rule 30, and

the agency shall make the determinations provided in Rule 36(B).



78 INDIANA LAW REVIEW [Vol. 9:66

aid of the trial court. In short, the court ruled that if it is within

the competency of the state agency to enforce the discovery that

is sought between the parties before it, then enforcement must
first be sought there. If the aggrieved party does not receive satis-

faction, then he may proceed to the appropriate court for enforce-
ment pursuant to Trial Rule 37.

Indiana & Michigan Electric Co. v. Whitley County Rural Elec-
tnc Membership Corp.''* involved a dispute concerning the rele-
vancy of certain interrogatories that were directed by the defend-

ant Indiana & Michigan Electric Company to the Rural Electric
Membership Corporation. The plaintiff contended that the inter-
rogatories were improper because they sought to discover a party*s
contention regarding a factual matter that was to be decided by the
court. In reversing the trial court's grant of summary judgment
for the plaintiff, the court of appeals held, pursuant to Trial Rules

26(B) (1)" and 33(B), that it was proper to seek discovery of an
opinion, contention, or legal conclusion. Hence, since the challenged

interrogatories fell within the broad scope of discovery, the trial

court erred in sustaining plaintiff's objections to them.

The scope of discoverable information under Trial Rule 26(B)
(1) was again considered by the court of appeals in Chambers v.
Public Service Co.^^ The defendant-landowners sought to discover,
by use of interrogatories and requests for the production of docu-
ments, certain information which they contended was relevant to
their defense of the plaintiff's condemnation action. The con-
demnor intended to use defendant's land for the planned construe^
tion of a nuclear power plant. The defendant sought various in-
formation on the other land involved in the project and on permits

tiie condemnor was required to obtain from the government. The

condemnor objected to this line of discovery on the ground that

the desired information was beyond the scope of discovery set forth

in Trial Rule 26(B). The trial court sustained the objection.

The court of appeals reversed the trial court's ruling and re-

manded the case with instructions that the trial court overrule the

condemnor's objection. In so doing, the court reaffirmed the broad

construction that is to be given Trial Rule 26(B) (1) in furthering

<>''316 N.E.2d 584 (Ind. Ct. App. 1974).

"Trial Rule 26(B) (1) in part provides:

Parties may obtain discovery regarding any matter, not privileged,
which is relevant to the subject-matter involved in the pending action

.... It is not ground for objection that the information sought will be

inadmissible at the trial if the information sought appears reason-

ably calculated to lead to the discovery of admissible evidence.

^*328 N.E.2d 478 (Ind. Ct. App. 1975).



1975] SURVEY—CIVIL PROCEDURE 79

pretrial discovery in civil actions/' The court noted that the trial
rules require only that the information sought be loosely relevant

to the subject matter of the litigation and **be either (1) admis-

sible, or (2) reasonably calculated to lead to other evidence which

will be admissible."^® The court thought that the information re-
quested by the defendants was relevant to the issue of whether the
condemnor had put forth a good-faith offer for the realty ; the trial
court thus erred in not directing the condemnor to respond to the
interrogatories.

r
Z>. Trial and Judgment

In the past year, the Indiana appellate courts have considered

many issues surrounding jury instructions. In Birdsong v. ITT
Continental Baking Co.,''^ the trial court had permitted a jury in-

struction that the plaintiff's failure to have his seatbelt fastened,

while not contributing to the cause of the accident, could have con-

tributed to cause his injuries; therefore, as to the extent of the in-

juries caused, the plaintiff's failure to use his seatbelt could be

viewed as contributory negligence.

The court of appeals reversed in a divided opinion and granted
the plaintiff a new trial. Judge Staton's opinion stated that the
instruction permitted the jury to consider degrees of negligence,

a principle not recognized in Indiana.'" Where the instruction given
does not conform to the substantive law of Indiana, the appellate

court must assume that it influenced the result in the trial court
unless it appears from the evidence or the record that the verdict
under proper instruction could not have been different. Judge
Staton also stated that the combined effect of the instructions was
to mislead the jury, since two other of the plaintiff's instructions
informed the jury of the definition and effect of contributory negli-
gence in Indiana. Judge Lybrook concurred in the result, stating
that the instruction invited the jury to engage in pure speculation

as to what injuries would have been prevented had the seatbelt
been used.

Easley v. Williams^ ^ raised the issue of the combined effect
of jury instructions. In the trial court the defendant was permitted
to have six instructions which dealt with contributory negligence
tendered to the jury. Following a verdict for the defendant, the

trial court, pursuant to Trial Rule 59, granted the plaintiff a new
^^See Tobe Deutschmann Corp. v. United Aircraft Prods., Inc., 15 F.R.D.

363 (S.D.N.Y. 1953).
*«328 N.E.2d at 482.
6^312 N.E.2d 104 (Ind. Ct. App. 1974).

'°S0e Pawlisch v. Atkins, 96 Ind. App. 132, 182 N.E. 636 (1932).
'^321 N.E.2d 752 (Ind. Ct. App. 1975).



80 INDIANA LAW REVIEW [Vol. 9:66

trial on the ground that the issue of contributory negligence had

been overemphasized. Over a strong dissent, the couii: of appeals

affirmed the trial court's grant of a new trial. The majority ex-
plained its decision as follows:

Our reading of those instructions reveals that tliey were

in fact repetitious each repeating, although in somewhat

different language, the elements of contributory negli-

gence. When those instructions are read in light of the
instructions as a whole we agree that the issue of con-
tributory negligence was unduly emphasized such that
the giving of those instructions was error. ^^

Other issues concerning jury instructions were raised in

Hobby Shops, Inc. v. DrudyJ^ In this case two actions were con-
solidated for trial and defendant tendered a list of twenty-two

proposed instructions. The trial court refused to give all of the
proffered instructions. In affirming the trial court, the court of

appeals, pointing to the language of Trial Rule 51(D) which gives
each party the right to tender no more than ten instructions, held
that the consolidation of two actions does not double that number.
The defendant contended that the plaintiff waived the limit of ten
instructions by failing to object to the excessive instructions when
they were offered. Again relying on Trial Rule 51(D), the court
quoted the language in the rule which states that "[n]o party shall
be entitled to predicate error upon the refusal of a trial court to
give any tendered instruction in excess of the number fixed by
this rule."^'* Since the mandate of the rule controls, the failure of
the plaintiff to object was irrelevant.

Wolff V. Skisher^^ brought into focus the duty of the trial

judge to instruct the jury properly. The plaintiff and one defendant
had entered into an oral contract for the clearing of timber on
that defendant's land. A second defendant, the lessee of the owner-
defendant, used part of the property for farming. The plaintiff
brought an action seeking damages and a writ of replevin to re-
cover his equipment after the defendants had barred his access to
the farm. The defendants then counterclaimed alleging that the
plaintiff had cut trees other than those authorized and that the
plaintiff had failed to clean up the property after removing the
timber. The lessee also counterclaimed for destruction of crops
and fences and for failure to clean up the premises. The trial judge
gave the jury five verdict forms to use; the first form allowed them
to find for the plaintiff against both defendants, the next two forms

'^317 N.E.2d 473 (Ind. Ct. App. 1974).
^*Id. at 477.

7^314 N.E.2d 758 (Ind. Ct. App. 1974).



1975] SURVEY—CIVIL PROCEDURE 81

provided for recovery by the plaintiff against either defendant, and
the final two forms dealt with the recovery by the defendants
against the plaintiff on their separate counterclaims. The jury
returned two verdicts for plaintiff, one against both defendants
and another for the plaintiff against the defendant-owner indi-
vidually. The jury made no findings with respect to the defendants'
counterclaims.

On appeal, the court reversed on the issue of improper inclu-
sion of gross profits in the damages awarded.^* The court then com-
mented in dictum on the verdict forms used and the resulting con-

fusion of the jury. The plaintiff contended that since the defend-
ants had not objected to the verdict forms, they had waived any

alleged error. The court stated that although failure to object to
the verdict forms may have waived the error, the trial court's
fundamental responsibility to properly instruct the jury cannot be

ignored.^'' The court left the impression that if it felt that the jury
was unable to understand the issues, failure of a party to object
to jury instmctions would not prevent the court from reversing.

Trial Rule 60 received considerable attention at the appellate

level in the past year. In Hooker v. Terre Haute Gas Corp,/^ sl suit

filed in 1966 was dismissed with prejudice in 1972, pursuant to
Trial Rule 41(E), for failure to prosecute the action. The plaintiff
filed a motion to reinstate the cause of action, which was denied.
The plaintiff then filed a motion under Trial Rule 60(B) (1) to
set aside the judgment on the ground of excusable neglect. The
court of appeals noted that a dismissal with prejudice may be set
aside only in accordance with Trial Rule 60 (B).^' Thus, plaintiff's

motion to reinstate the cause was held to be a Trial Rule 60 motion,
and its denial was a final judgment, which was appealable.°° To
perfect the appeal, the plaintiff was required by Trial Rule 59(C)
to file a motion to correct errors within 60 days of the ruling on the

motion; since no timely motion to correct errors had been filed,
the plaintiff had lost his right to appeal. The court added that the
plaintiff's subsequent Trial Rule 60(B) motion, which relied on
the same basic ground as the original motion, could not be used to
extend the time period in which to perfect plaintiff's appeal.®^ The

''*^The court of appeals noted that even though there had been no final
judgment on the counterclaims, the court could review those issues which were
decided.

^^See Board of Comm'rs v. Flowers, 136 Ind. App. 579, 201 N.E.2d 571
(1964).

'^^317 N.E.2d 878 (Ind. Ct. App. 1974).
'''Ind. R. Tr. P. 41(F).
«°IND. R. Tr. p. 60(C).
•'317 N.E.2d at 881, ciUng Davis v. Davis, 306 N.E.2d 377 (Ind. Ct. App.

1974).



82 INDIANA LAW REVIEW [Vol. 9:66

plaintiff also attempted to raise the failure to hold a hearing on the

original dismissal, but the court found no authority under Trial

Rule 60 for this procedure.

In McFarland v. Phend & Broiun, Inc.,^^ the plaintiffs moved
under Trial Rule 60(B) (3) to set aside a judgment on the ground

that an affiant had made a material misrepresentation in his affi-
davit in support of the defendant's motion for summary judgment.
The case arose out of an automobile accident in which the plaintiffs'

car struck a state-owned crane at an unmarked curve in the road.

The plaintiffs sued the contractor who had been working on the
road. The defendant subsequently filed a motion for summary judg-
ment, attaching to it an affidavit signed by the secretary of the

defendant-corporation in which the secretary asserted that all of

the defendant's equipment had been removed from the site before
the accident occurred. The plaintiffs filed no counter affidavits
nor did they appear at the summary judgment hearing. The court
granted the motion. One year later plaintiffs filed a motion under
Trial Rule 60(B)(3) asserting that depositions taken after the
judgment showed that there was a genuine issue of material fact
as to whether defendants had been released under the contract and
had been authorized to remove the warning signs. The trial court
denied the motion.

The court of appeals affirmed. The court first noted that this
was a case of first impression in Indiana. Holding that relief under
Trial Rule 60(B) (3)®^ requires that the affiant knew or should
have known that the representation made in the affidavit was false
and that the misrepresentation must be made as to a material fact
which would change the court's judgment, the court found that the
representation made was not false. It was a conclusory representa-
tion based upon facts and inferences which the affiant placed in
the best possible light. This was not the kind of misrepresentation
meant to be covered by Trial Rule 60.

In Warner v. Young America Volunteer Fire Departmenty'^*

the court of appeals stated that Trial Rule 60 is not a substitute for

appeal and that the grounds for granting a Trial Rule 60 motion

are limited to errors which could not have been discovered in time

to be included in a timely motion to correct errors.®^ The defendant
in answer to the plaintiff's complaint had alleged that plaintiff, as

"317 N.E.2d 460 (Ind. Ct. App. 1974).
®^Trial Rule 60(B)(3) provides for relief from a final judgment for

"fraud . . . misrepresentation, or other misconduct of an adverse party."
«^326 N.E.2d 831 (Ind. Ct. App. 1975).

*5/cZ. at 834 n.4, citing 4 W. Harvey & R. Townsend, Indiana Practice
222 (1971).



1975] SURVEY—CIVIL PROCEDURE 83

denominated, lacked capacity to sue.*** The plaintiff thereafter
amended its complaint without curing the alleged defect, but the
defendant did not renew his allegation in the answer to the amend-

ed complaint. Following judgment for the plaintiff, from which

the defendant took no appeal although he filed a motion to correct

errors, the defendant sought to have the judgment set aside under

Trial Rule 60 on the grounds that the judgment v/as void and that

it was no longer equitable that the judgment should have prospec-

tive application.
°^

The court of appeals, relying on federal cases interpreting the
corresponding federal rule, held that Trial Rule 60(B) (6) affords

a means only for extraordinary relief, to be granted only on a
showing of exceptional circumstances. A party cannot allow his
time for appeal to lapse and then renew his remedy of appeal by a

Trial Rule 60(B) motion. Accordingly, all alleged errors which

were not included in the original motion to correct errors had been

waived. As to the alleged errors that were included in the motion
to correct errors, the court held that the defendant waived the de-

fense of lack of capacity to sue by his failure to raise the defense

in the answer to plaintiff's amended complaint. Consequently, the
judgment was not void. The defendant also argued under Trial
Rule 60(B) (7) that it was no longer equitable to permit the judg-
ment to have prospective effect since the judgment could be used
to deprive the defendant of his home and livelihood. The court held
that there must be some change of circumstance since the entry
of the original judgment and that the change of circumstance must
not be reasonably foreseeable at the time of the entry of judgment,

in order for a Trial Rule 60(B) (7) motion to succeed.

In Yerkes v. Washington Manufacturing Co.,^^ the trial court,

in an action for malicious prosecution, granted defendant's motion

for summary judgment. In addition, the trial court granted de-
fendant's motion for judgment by default on its counterclaim.

The plaintiff sought relief from the default judgment in his
motion to correct errors, which was denied. In reversing in part
and dismissing in part, the court of appeals held that the trial

court erred in granting defendant's motion for summary judg-
ment since a material issue of fact existed as to whether or not
defendant had probable cause to initiate the prosecution.^' In

dismissing the attack on the default judgment on defendant's
counterclaim, the court held that a default judgment can be set

®^Trial Rule 9(A) provides that lack of capacity to sue must be pleaded
as an affirmative defense.

fi^ND. R. Tr. p. 60(B) (6), (7).
«S326 N.E.2d 629 (Ind. Ct. App. 1975).
«'See Tapp v. Haskins, 310 N.E.2d 288 (Ind. Ct. App. 1974).



84 INDIANA LAW REVIEW [Vol. 9:66

aside only in accordance with Trial Rule 60 (B)''^ and that the

allegations in plaintiff's motion to correct errors seeking to set

aside the default thus must be treated as a Trial Rule 60 motion.

Furthermore, the denial of the motion to correct errors con-

stituted a final judgment pursuant to Trial Rule 60(C) ; therefore,

the plaintiff was required to file an additional motion to correct

errors to perfect his appeal. By his failure to do this, the plain-
tiff waived his right to appeal the default judgment on the

counterclaim," and the court dismissed that part of the appeal.

With respect to Federal Rule of Civil Procedure 60(b), the

Seventh Circuit Court of Appeals in the case of Washington v.
Board of Education''^ stated that the district court may consider a
rule 60 (b) motion during the pendency of an appeal. If the district

court is inclined to grant that motion, then application can be

made to the appellate court for a remand of the appeal.

Gumz V, Bejes^^ involved the right to trial by jury. Defendant
Gumz had built dikes and ditches equipped with water pumps to
prevent the flooding of his farm. Since the equipment also bene-

fited his neighbors' property, Gumz asked them to help pay the
cost of his dikes and pumps. When the neighbors did not con-
tribute, Gumz changed his flood control system; as a result, the
neighbors' lands w^ere flooded. The neighbors filed suit for an
injunction and damages. Gumz counterclaimed for an injunction
to require removal of the neighbors' alleged obstructions in his

drainage ditch and for damages. The trial court refused Gumz's
request for a jury trial and granted an injunction and nominal
damages to the neighbors.

On the basis of Hiatt v. Yergin,'^'^ the court of appeals af-
firmed the trial court's refusal to grant a jury trial. Gumz at-
tempted to avoid the Hiatt rule that a jury trial is not required
if the essential character of the claim is equitable by arguing
that the essential nature of his claim was altered by a pretrial
order of the court. The pretrial order had recognized that a
portion of the damages claimed by Gumz was based on the legal
theory of trespass. However, the court of appeals found that
this was merely recognition of one issue in the case; the essential
character of the claim was not altered.

Vernon Fire & Casualty Insurance Co. v. Sharp'^^ raised the
issue of whether the trial judge or the jury should construe an

''^IND, R. Tr. p. 55(C). See 3 W. Harvey, Indiana Practice 521 (1970).
'•See Renfroe v. State, 316 N.E.2d 405 (Ind. Ct. App. 1974).
'=498 F.2d 11 (7th Cir. 1974).
"^321 N.E.2d 851 (Ind. Ct. App. 1975).
'n52 Ind. App. 497, 284 N.E.2d 834 (1972).
953I6 N.E.2d 381 (Ind. Ct. App. 1974).



1975] SURVEYS-CIVIL PROCEDURE 85

unambi^ous contract. The court of appeals, citing a prior case,'^
held that the trial judge should construe an unambiguous contract.

However, it was not error to allow the jury to construe the con-
tract if it appeared from the record that they placed a correct

construction on it.'^ The court found that the jury properly con-
strued the contract.

Stephens v. Shelbyville Central Schools^^ concerned the amount
of time allowed for final argument. The trial court had permitted
the defendant four additional minutes of argument to counter

new matters brought out in plaintiff's rebuttal. The court of
appeals, relying on an Indiana statute,'' held that the party with

the burden of proof generally opens and closes final argument;

however, an exception is recognized when new matters are raised
in the rebuttal. When this occurs, the adverse party has the right
of reply. The court, in affirming the trial court, referred to the
broad discretion that is granted to a trial court and the fact
that a trial judge often is faced with a difficult question requiring

an immediate decision. Even if the trial court's decision was
erroneous, the court of appeals was unable to say that the grant
of four additional minutes of argument constituted reversible
error.

Ingmire v. Butts^^ raised the issue of the power of a master
commissioner to enter judgment. The plaintiffs filed an action
seeking rent and damages for alleged breaches of a lease. Sub-
sequently, plaintiffs filed an action for possession, and a writ of
ejectment was issued. During pretrial proceedings all matters
were conducted before the circuit court judge. However, trial
was held before and judgment rendered by a master commissioner.
Four months after judgment was rendered, the circuit court judge
certified the appointment of the master commissioner as being
duly appointed and authorized during the hearing of evidence.
The court of appeals refused to hear the appeal. It held that there
was no judgment in the case rendered by a judicial officer, and
therefore there was no appeal. The court held that both the stat-
ute^°' and Trial Rules 53(E) (1) and (2) limit a master commis-
sioner to hearing the evidence and preparing a report for the trial
court. Only a judge has the power to enter a judgment. The court

"^United States Fidelity & Guar. Co. v. Baugh, 146 Ind. App. 583, 257
N.E.2d 699 (1970).

'^^See Vulcan Iron Works Co. v. Electric Magnetic Gold Mining Co., 54
Ind. App. 28, 99 N.E. 429 (1912).

9«318 N.E.2d 590 (Ind. Ct. App. 1974).

''Ind. Code § 34-1-21-1 (Burns 1973).
'°°312 N.E.2d 885 (Ind. Ct. App. 1974).

^°'IND. Code § 43-1-25-3 (Burns 1973).



86 INDIANA LAW REVIEW [Vol. 9:66

did not dismiss the appeal but suspended consideration of it until

such time as a final judgment was rendered.
In Sekerez v. Board of Sanitary Commissioners,^°^ the court

of appeals had an opportunity to correct a statement made in an
earlier opinion/ °^ In the first opinion the court had taken the

position that facts not found by the trial court are taken as not

proved. Noting the mandate of Trial Rule 52(D)/°'' the court

of appeals corrected their earlier position, holding that the failure

of a trial court to enter a finding of fact which is requested by

the party who has the burden of producing evidence to show that
fact does not create a presumption against that party that the

fact was not found or that the evidence was insufficient to sup-
port the finding.

In Jacob Weinburg News Agency, Inc. v. City of Marion,^^^
the plaintiff news agency, a distributor of magazines, brought a
declaratory judgment action under Trial Rule 57 seeking to de-
clare a city ordinance unconstitutional as a abridgment of free-

dom of the press and of various property rights. The trial court
dismissed the action because, rnter alia, "declaratory relief has

been denied in Indiana where it involves determination of serious
criminal liability." '°* The court of appeals reversed, holding that
the supreme court^s adoption of Trial Rule 57 had enlarged the
classes of people entitled to obtain declaratory relief. The court
noted that Trial Rule 57 was almost a verbatim duplicate of rule
57 of the Federal Rules of Civil Procedure, '°^ and that federal
decisions would grant standing to the plaintiffs under the fed-
eral rule.^"*' The court stated that adoption of Trial Rule 57 had
the effect of overruling Department of State v. Kroger Grocery
& Baking Co,''^'^ and deeply eroding the authority of Bi^arly v,

^°'312 N.E.2d 98 (Ind. Ct. App. 1974).
'°^Sekerez v. Board of Sanitary Comm'rs, 309 N.E.2d 460 (Ind. Ct. App.

1974).

'°'*Trial Rule 52(D) (2) provides that "[t]he court's failure to find upon

a material issue . . . shall not be resolved by any presumption."
^°^322 N.E.2d 730 (Ind. Ct. App. 1975).
i°*/cZ. at 732, citing Bryarly v. State, 232 Ind. 47, 111 N.E.2d 277 (1953).

^°''The two exceptions are a deletion in the Indiana rule of the citation to
the federal declaratory judgment statute and the addition of the sentence:
"Declaratory relief shall be allowed even though a property right is not in-

volved." Ind. R. Tr. P. 57.

i°«Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 690 n.22 (1968)

;

Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 64 n.6 (1963).
'°9221 Ind. 44, 46 N.E.2d 237 (1943). Kroger held that equity cannot re-

strain criminal prosecutions or the operation of criminal statutes, although

injunctive relief would not be denied if there was a property right at stake
and the operation of the criminal statute was only incidental thereto. Id. at 46,
46 N.E.2d at 238.



1975] SURVEY—CIVIL PROCEDURE 87

State.'''' Thus it would seem clear that as a result of this decision,

the availability of declaratory relief is considerably expanded in

Indiana.

The court of appeals reviewed the standards applicable to a

motion for judgment on the evidence' '' in Huff v. Traveler's In-

demnity Co.'''' The case involved a suit for damages based on a

homeowner's insurance policy. After the jury returned a verdict

for the plaintiff, the defendant filed a Trial Rule 59 motion to

correct errors, which included a motion for judgment on the

evidence pursuant to Trial Rule 50 (A) (4) . The trial court granted

the motion and entered judgment for the defendant.

In affirming the trial court, the court of appeals distinguished

the standard of review which should be applied by the trial court

under Trial Rule 50 before the verdict from that which should be

applied after the verdict. Before the jury's verdict, the settled

rule is that the trial court should not grant a motion for judgment

on the evidence unless it finds a total absence of evidence or

reasonable inference from the evidence on one or more essential

elements of the nonmoving party's case.'" After the verdict has

been rendered, a further consideration by the trial court is re-

quired, as the Trial Rule 59 " 'clearly erroneous as contrary to or

not supported by the evidence' standard of review goes a step

beyond the Trial Rule 50 'clearly erroneous as contrary to the

evidence because the evidence is insufficient to support it' standard

of review.""'* If, after the verdict, the trial court finds that there

is substantial evidence of probative value on each essential ele-

ment of the claim or defense, the court must weigh the evidence
to see if the jury's verdict is against the weight of the evidence.

If it is, the court must grant a new trial. Of course, if there is in-
sufficient evidence to support the verdict, the court must enter
judgment for the moving party, the same as it would have done
before the verdict.

In Lake Mortgage Co. v. Federal National Mortgage Associa-

tion,"^ the supreme court gave a definitive interpretation to Trial

Rule 59. The plaintiff filed a complaint of foreclosure against real
estate owned by two defendants and in possession of two other

'^°232 Ind. 47, 111 N.E.2d 277 (1953). The court of appeals in Weinburg
took note that it was not overruling the specific holding of the Bryarly case
that a defendant, after receiving an adverse decision on a motion to quash the
charge against him, cannot bring an action for a declaratory judgment to have
the court again pass on the constitutionality of a statute. 322 N.E.2d at 735 n.3.

I'iND. R. Tr. p. 50(A).
^2328 N.E.2d 430 (Ind. Ct. App. 1975).
'""See, e.g., Miller v. Griesel, 308 N.E.2d 701 (Ind. 1974).
1^328 N.E.2d at 433.
^^321 N.E.2d 556 (Ind. 1975).



88 INDIANA LAW REVIEW [Vol. 9:66

defendants. A receiver was appointed for the property, and the
receiver was named in a third party complaint. Lake Mortgage
Company, the receiver's employer and the local servicing agent
on the plaintiff's mortgages, was also named as a third party
defendant. Various cross-claims were filed among all the parties.
After the jury returned a verdict, the trial court granted a new
trial because, due to the number of claims and cross-claims, the
jury may have been confused by the complexity of the issues.
The court of appeals affirmed, holding that the trial court's action
in granting a new trial was accorded a strong presumption of
correctness.'^*^

The supreme couii: reversed, holding that the presumption
of correctness obtains only when the trial court grants a new trial
because the verdict is against the preponderance of the evidence
and supports its decision with special findings of facf ^ The
court also held that the language

*

'prejudicial or harmful error"

found in Trial Rule 59(E) is not an "overbroad substantive cate-

gory which shelters any reason advanced by a trial court in sup-

port of relief granted. The words 'prejudicial or harmful error*

in [Trial Rule] 59(E) merely refer to the grounds for relief speci-

fied in [Trial Rule] 59(A)."''* Finally, the court held that when

a trial court grants relief on its own motion,'" it must support

its decision with a statement of facts and grounds upon which its

decision is based, as required by Trial Rule 59(B). Otherwise, the

party aggrieved by the court's action would not be able to properly

formulate his appeal.

In Pinkston v, State^^° the court of appeals held that Trial

Rule 41(B) was applicable to a criminal trial. The rule permits a

motion for involuntary dismissal in nonjury trials. The motion

is based upon the plaintiff's failure of proof and is made at the

close of plaintiff's case-in-chief. In this case the trial court denied

defendant's motion, and the defendant elected to proceed with the

presentation of her evidence. By proceeding, the defendant waived
any error in the ruling on the motion.'^'

''*Ernst V. Schmal, 308 N.E.2d 732 (Ind. Ct. App. 1974).

"^321 N.E.2d at 560. Trial Rule 59(E) (7) requires that when a new trial
is granted because the verdict is not in accord with the evidence "the court shall

make special findings of fact upon each material issue or element of the claim

or defense upon which a new trial is granted."
'i«321 N.E.2dat560.

^^'IND. R. Tr. p. 59(A).

^20325 N.E.2d 497 (Ind. Ct. App. 1975).

'^'See Hoosier Ins. Co. v. Ogle, 150 Ind. App. 590, 276 N.E.2d 876 (1971).



1975] SURVEY—CIVIL PROCEDURE 89

E, Appeals

Greyhound Lines, Inc. v. Vanover^^^ is a leading decision on

the appeal of interlocutory orders, especially because it concerned

the appeal of an order entered in a dispute over discovery. The
trial court overruled the defendant's objections to the plaintiff's

request for production of documents. The defendant then filed

an assignment of error in the court of appeals, praying that the

court reverse the trial court's order. The gist of the defendant's
petition was that the request for production and the ruling of the
trial court v^ere contrary to the scope of discovery allowed by
Trial Rule 26(B) (1) and (2), and hence the trial court could not

order the production of the items requested without evidence of

good cause being shown. The court of appeals, holding that the
defendant was seeking review of a nonappealable order, sustained
the plaintiff's motion to dismiss the appeal. The court said that
the interlocutory appeal provisions were to be strictly construed
and that any attempt to perfect an appeal which the rules do not
authorize requires a dismissal. Hence, orders which are entered

in discovery disputes will not be appealable as interlocutory orders,

except upon one condition discussed below.

In Indiana, there are two bases for an appeal of an interlocu-

tory order: Indiana Code section 34-5-1-1 Rule 72(b)'" and Ap-

pellate Rule 4(B). The former was enacted by the General Assem-

bly but was not dealt with by the Indiana Supreme Court when it

adopted the Trial and Appellate Rules of Procedure. It authorizes

an appeal to the supreme court of interlocutory orders for sub-

stantially the same grounds as those listed in Appellate Rule 4.'"

In addition, the statute states than an interlocutory order is appeal-

able if the trial court certifies and the court on appeal or a judge

thereof finds any of the following: (1) The appellant will suffer

substantial expense, damage, or injury if the order is erroneous and

the determination thereof is withheld until after judgment; (2)

the order involves a substantial question of law, the early deter-

mination of which will promote a more orderly disposition of the

case; or (3) the remedy by appeal after judgment is otherwise

inadequate.

'22311 N.E.2d 632 (Ind. Ct. App. 1974).

'2^5ee Ind. Code § 34-5-1-1 (Burns 1973). The statute can be found as a
note to Appellate Rule 4 in the Court Rules volume of Burns Code edition.

' 2**Appellate Rule 4(B), unlike the statute, authorizes an appeal for the

appointment of receivers. It also adds the words "not otherwise authorized to

be taken to the Supreme Court" in the provision allowing appeals from orders

and judgments upon writs of habeas corpus. Ind. R, App. P. 4(B) (4).



90 INDIANA LAW REVIEW [Vol. 9:66

Richards v. Crown Point Community School Corp,^^^ was the
first case to comment on the effect on the statute of the adoptioiii
of the Rules of Appellate Procedure. The case reached the supreme

court on an attempted appeal of an order granting a partial sum-
mary judgment. The court held that the order constituted a final
judgment and, therefore, was not appealable as an interlocutory
order. The court noted that its failure to deal with Rule 72(b)
was an inadvertent omission and that it should be considered a
part of the statutory provisions relating to appeals to the supreme

court. Therefore, after the Richards decision. Rule 72(b) appeared

to present an avenue of appeal to the supreme court not found in
Appellate Rule 4(B). This distinction was removed, however, in
Sekerez v. Board of Sanitary Commissioners, ^^^ in which the su-
preme court held that all interlocutory appeals were to be taken to
the court of appeals. The supreme court thus overruled in part its
decision in Richards without specific reference to it.

In summary, then, the following observations are applicable to
interlocutory appeals:

( 1 ) All interlocutory appeals are to be taken to the Indi-

ana Court of Appeals.

(2) There are two provisions for interlocutory appeals.
The first and latest is Appellate Rule 4(B). The other
was enacted by the General Assembly and adopted in the
Richards decision.

(3) The two provisions are almost identical except for
the certification language which is found in the statute
but not in the appellate rule.

(4) Discovery orders are interlocutory and not appealable

because they do not come within the strictly construed
language of Appellate Rule 4(B).

(5) Interlocutory discovery orders can be appealed if the

certification language of the statute is followed and
allowed.

Two recent cases have dealt with the appealability of deci-
sions on motions for summary judgment. In Pitts v, Wooldridge^"
an appeal was taken from an order denying the defendant's motion
for summary judgment. Defendant filed a motion to correct
errors directed to that order, which the trial court overruled. The
defendant appealed, and plaintiff moved to dismiss the appeal on
the ground that a denial of a motion for summary judgment was
neither a final judgment nor an appealable interlocutory order.

The court of appeals agreed with the plaintiff. It held that an

'2^256 Ind. 347, 269 N.E.2d 5 (1971).
'2*304 N.E.2d 533 (Ind. 1973).
'27315 N.E.2d 736 (Ind. Ct. App. 1974).



1975] SURVEY-OIVIL PROCEDURE 91

order denying a motion for summary judgment is not an appeal-
able interlocutory order as defined pursuant to prior supreme court

decisions.'^® The denial of a summary judgment motion indicates
that there are issues of fact to be resolved by a trial; therefore,
denial of the motion is interlocutory in character.

Federal Insurance Co, v. Liberty Mutual Insurance Co,^^'* pre-
sented slightly different issues. Suit was brought by the plaintiff
for damages on a bond. After the issues were joined and some
discovery was had, the plaintiff filed a motion for summary
judgment as to all issues of liability but reserved the issues of

damages. The trial court granted the plaintiff's motion and denied
a similar motion made by the defendant. The defendant then took
an appeal, which the court of appeals dismissed. It held, relying
on Trial Rule 56(C), that when summary judgment is rendered
upon less than all of the issues or claims in the case, then judg-
ment upon less than all the issues involved shall be interlocutory
unless the trial court in writing expressly determines that there

is no just reason for delay, and, in writing, expressly directs the

entry of judgment as to less than all issues, claims, or parties.

The court noted that such an entry had not been made, and, ac-
cordingly, the trial court's entry was regarded as interlocutory and
not appealable as a final judgment. ^^°

The degree of specificity required in a motion to correct
errors to preserve an issue for appeal was considered in Leist v.
Auto Owners Insurance Co,^^^ The insurance company filed a com-
plaint for a declaratory judgment and an injunction seeking to
restrain Leist from pursuing arbitration of his claim against the
company. The trial court granted the injunction and found that
Leist was entitled to recover $10,000 under an automobile insur-
ance policy. However, the court further found that the insurance

company was entitled to a right of subrogation for $11,976.12 paid
to Leist under a workmen's compensation policy. The insurance
company had issued both policies to Leist's employer. Leist's mo-
tion to correct errors recited that the decision of the trial court

regarding the right to subrogation was contrary to law.
On appeal the insurance company contended that Leist had

not preserved the issue of the legality of a setoff clause in the in-

surance policy in his motion to correct errors and thus could not
argue it on appeal. The court of appeals rejected this argument,

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

(1972) ; Richards v. Crown Point Community School Corp., 256 Ind. 347, 269
N.E.2d 5 (1971).

^29319 N.E.2d 171 (Ind. Ct. App. 1974).
'^°C/. Richards v. Crown Point Community School Corp., 256 Ind. 347,

269 N.E.2d 5 (1971).
'=»'311 N.E.2d 828 (Ind. Ct. App. 1974).



92 INDIANA LAW REVIEW [Vol. 9:66

holding that Leist's motion was sufficiently specific to preserve
the issue. The court stated that, in ascertaining whether an alleged
error has been preserved, it is necessary to look also at the

supporting memorandum to the motion to correct errors. If both
the motion and supporting memorandum, considered together, sub-
stantially comply with the Trial Rule 59(B) requirement of spe-

cificity, the issue has been preserved for appeal. To consider only
the motion itself, the court stated, "would inject a rigidity not con-

templated by the framers of the Rules."'" The court noted that the
issues of subrogation and setoff were closely related, that Leist
appeared to have used the words interchangeably, and that the

supporting memorandum specifically referred to setoff. Thus there
was no waiver of the issue.

In Hubbard v. State,^^^ a criminal appeal, the State did not
argue the merits on five out of six issues presented in the defend-

ant's brief. The State instead argued, relying on Appellate Rule
8.3(A) (7), that the defendant had waived these issues because of

his failure to cite authorities in support of his contentions.'^* The
supreme court chastised the State for not meeting the merits, stat-
ing that Appellate Rule 8.3(A) (7) is not a technicality to be used

to preclude a party from raising a novel issue or from suggesting
a reconsideration of a settled rule of law. The function of the rule
is to secure a convenient and uniform mode for presentation of
issues to an appellate court. The court held that the issues before
it were clearly presented, and it proceeded to consider them.

In Collins V. Dunifon^^^ the plaintiff attempted to rely on his
own incompetence as justification for tolling the statute of limi-
tations. He filed seven affidavits in support of his position in
opposition to the defendant's motion for summary judgment.
The trial court granted the defendant's motion, and the plaintiff
filed a motion to correct errors, attaching with it an eighth affi-
davit—one not filed in opposition to the motion for summary
judgment. The court of appeals held that the eighth affidavit was
not properly before it. The court recognized that Trial Rule 59(D)
does provide a basis for filing affidavits with a motion to correct
errors,'^* but it held that this rule cannot be used as a basis for
_ _______

.

'^^313 N.E.2d 346 (Ind. 1974).
'

^'^Appellate Rule 8.3(A) (7) provides in part: "The argument shall con-
tain the contentions of the appellant with respect to the issues presented, the
reasons in support of the contentions along with citations to the authorities,
statutes, and parts of the record relied upon . . . ."

^^^323 N.E.2d 264 (Ind. Ct. App. 1975).

'^*Trial Rule 59(D) provides that "[w]hen a motion to correct errors
is based upon evidence outside the record, the cause must be sustained by
affidavits showing the truth thereof served with the motion."



1975] SURVEY—CIVIL PROCEDURE .9^8

presentation of evidence which the party neglected to present at a
prior proceeding.'^' Rather, Trial Rule 59(D) "provides a basis
for disclosing on the record matters constituting a basis for cor-

rection of error which occurred during the prior proceedings, but
were not reflected in the record."'^® The court then reversed the
grant of summary judgment because the remaining seven affi-
davits did create a genuine factual issue of plaintiff's alleged

unsoundness of mind.

In a number of cases decided this year the courts have made it
clear that a motion to correct errors must follow the last judgment
of the trial court in order to perfect an appeal. In the first case
of this type to arise this year, Wyss v, Vi^yss,^^'^ the trial court
sustained the defendant's motion for summary judgment and en-
tered judgment for the defendants. Thereafter, the plaintiffs
moved to correct error. After a hearing on the motion, the trial
court took the motion under advisement. Subsequently, the court

entered its findings of fact and overruled the motion to correct
errors. The court of appeals observed that, in comparing the
findings of the original judgment with those in the ruling on the
motion to correct errors, it was readily apparent that the trial
court amended its original findings in the new entry. The court
held that it therefore was necessary to file a second motion to
correct errors directed against the entry which the trial court
made as a result of the first motion to correct errors. As no second
motion was filed, the court dismissed the appeal.

In Hanshrough v, Indiana Revenue Board,^^° the defendant

board filed a motion to dismiss contending that Hansbrough failed
to state a claim upon which relief could be granted.'^' The trial
court sustained the motion, and the plaintiff timely filed a motion
to correct errors. The trial court overruled the motion to correct
errors and in so doing made findings of fact and conclusions of
law. No motion to correct errors was filed to the later decision. The
court of appeals, sua sponte, dismissed the appeal for lack of ap-
pellate jurisdiction. It held that the later findings constituted the
entry that finally determined the rights of the parties, leaving no
further questions for future determination by the court. As such,
it was the court's final judgment to which a motion to correct
errors should have been directed. Judge Sullivan concurred, stat-
ing that the later entry was not a judgment at all but was merely

'^^There was no showing in Collins that the affidavit was newly discovered
evidence which could not have been discovered in time for the prior proceeding.
See IND. R. Tr. P. 59(A) (6).

'"323 N.E.2d at 268.
'39311 N.E.2d 621 (Ind. Ct. App. 1974).
'^°326 N.E.2d 599 (Ind. Ct. App. 1975).
'^'IND. R. Tr. p. 12(B)(6).



^ INDIANA LAW REVIEW [Vol. 9:66

a ruling on a motion to dismiss. Such a ruling cannot be a judg-

ment since the pleadings can be amended once as a matter of right

^\ithin 10 days after sei^vice of notice of the court's ruling,'"^ In

Judge Sullivan's opinion, had Hansbrough filed a motion to cor-

rect errors to the later entry, it still would not have been appeal-

able.

In Koziol V. Lake County Plan Commission,^ ^^ the court of ap-

peals again dismissed an appeal in v^hich a required second motion

to correct errors was not filed. In this case findings of fact and
conclusions of law and a judgment thereon were entered in the

trial court. Thereafter, the appellants filed a motion to correct

errors. The trial court overruled the motion and, in so doing, made
new and additional findings of fact and conclusions of law. Appel-
lants filed their praecipe and perfected their appeal on the basis of
their prior motion. The court of appeals dismised the appeal on the
appellee's motion. It pointed out that, consistent with several re-

cent decisions,' ''^ when the trial court modifies or changes the prior
entry against which a motion to correct errors was directed, the
appellant must file a second motion to correct errors prior to tak-
ing the appeal.

Weber v. Penn-Harii^-Madison School Corp,^^^ involved not
only new findings by the trial court but also a vacating of its earlier
judgment. The court of appeals held that with the vacating of the
prior judgment, the motion to correct errors became a nullity;
therefore, since a condition precedent to appeal had not been ful-
filled, the court sustained appellee's motion to dismiss. Easley v,
Williams^ "^^ was a similar case with dissimilar results. A jury
verdict was returned for the defendants, and judgment was entered
accordingly. Thereafter, the plaintiff filed a motion to correct

errors setting out several specifications of error. The court granted
the motion and entered an order granting a new trial; no new
judgment was entered. The defendant appealed from the order
granting a new trial. The plaintiff filed a motion to dismiss the
appeal, alleging that the trial court's ruling on the motion to
correct errors constituted a new judgment which required that a
second motion to correct errors be filed. The court of appeals
denied the motion, holding that the trial court's grant of a new
trial abolished the original judgment and that no new judgment
resulted. Consequently, no new motion to correct errors was re-

^^^iND. R. Tr. p. 12(B)(8).
>^=315 N.E.2d 374 (Ind. Ct. App. 1974).
'^'See State v. Kushner, 312 N.E.2d 523 (Ind. Ct. App. 1974); Wyss

V. Wyss, 311 N.E.2d 621 (Ind. Ct. App. 1974) ; Davis v. Davis, 306 N.E.2d 377
(Ind. Ct. App. 1974).

'^^317 N.E.2d 811 (Ind. Ct. App. 1974).
'^'314 N.E.2d 105 (Ind. Ct. App. 1974).



1975] SURVEY—CIVIL PROCEDURE 96

quired. The court deemed the grant of a new trial to be a final
judgment from which an appeal could be taken pursuant to Appel-
late Rule 4(A). The court relied on the statement of Justice Arter-
burn in State v, DePrez^^^ that the simple grant of a motion to cor-
rect errors is a final judgment from which an appeal can be taken
without further ado.

Easley is the only case subsequent to DePrez which relieved a
party from the requirement of filing a second motion to correct
errors after the original judgment had been modified to any extent
by the trial court. Notwithstanding the Easley court's reliance
on DePrez, it is difficult to reconcile the two cases. If one of the
purposes of the motion to correct errors is to allow the trial court

an opportunity to rectify its mistakes, then the losing party on the
trial court's grant of a new trial should be required to file a motion
to correct errors to allow the court a chance to correct its mistake

in granting the new trial. The theory behind DePrez was that
if the court modifies its original judgment, it should be given the

chance to correct any error in that modification before an appeal
is taken.

In Jackson v, Jackson^^^ and State ex rel. Jackson v. Owen
Circuit Courty^^'* appeals were taken in which the sufficiency of the

evidence to support a trial court's determination was questioned.
In both cases, however, the transcript of evidence and the proceed-
ings at trial were not filed with the clerk of the trial court and
made a part of the record. After the record of the proceedings
and the appellant's brief were filed, the appellee moved to affirm
the judgment of the trial court. The appellee argued that because
the transcript was not filed, it was not properly before the court
of appeals. The appellant then sought an order from the trial
court making a nunc pro tunc entry of the trial court's certificate
ordering the filing of the transcript of evidence. This was granted
by the trial court in April, with a nunc pro tunc entry as of
January 1974. The court of appeals held that the order of the
trial court should be expunged from the record of the trial court
since that court no longer had sufficient jurisdiction to make such
an entry absent a written note, minute, or memorial in the record
upon which to base the order. In short, when the record of pro-
ceedings was filed in the appellate court, jurisdiction of the case
immediately passed to the appellate court. Since all questions

raised in the appeal depended on a consideration of the evidence

and since the evidence was not part of the record, there was
nothing for the court of appeals to consider.

'^^296 N.E.2d 120, 124 (Ind. 1973>.
'^»314 N.E.2d 70 (Ind. Ct. App. 1974).
^^9314 N.E.2d 73 (Ind. Ct. App. 1974).



96 INDIANA LAW REVIEW [Vol. 9:66

A number of cases in the last year dealt with the question of
what constitutes an adequate appellate brief. In City of Indian-

diaimpolis v. Festival Theater Corp.,'^° the appellee filed a motion to

dismiss the appeal asserting that the appellant's brief did not con-

tain a verbatim statement of the trial court's judgment. The court

found that the allegations were true. However, the court stated

that the defect was not a cause for dismissal but rather a cause

for deferment. The court of appeals gave the appellants 10 days
from the date of the order to amend their briefs to include a ver-
batim statement of the judgment; if they did not do so within

that time, the judgment of the trial court would be affirmed.

In Yerkes v. Washington Manufacturing Co.,^^^ the plaintiff

was employed by the defendant as a distributor of the company's
goods. The defendants caused a criminal action to be brought
against the plaintiff for the felony of falsely and fraudulently
issuing a check to defendants. However, on the date of trial, the
State dismissed the charge. Thereafter, the plaintiff initiated this

action seeking damages on the theory of malicious prosecution.
The defendants counterclaimed seeking judgment for the amount
alleged to be due and owing by the plaintiff to the defendant com-
pany. Prior to trial, the court granted the defendants' motion for

summary judgment on the plaintiff's claim and entered judgment
for the defendants. Further, the court granted the defendants'

motion for judgment by default on their counterclaim. Following
a hearing on the issue of damages, the court entered judgment
against the plaintiff and in favor of the defendants in the sum
of $2,497.90. Plaintiff's motion to correct errors was overruled.
On appeal, plaintiff's brief failed to specifically set forth the ap-
plicable errors assigned in his motion to correct errors but rather

made numerical reference to the appropriate sections of his motion.
The defendants moved for dismissal, alleging that this violation of
Appellate Rule 8.3(A)(7) amounted to a waiver of all these
issues. The court of appeals, in overruling the defendants' motion,
stated that it "prefers to decide cases on their merits whenever
possible, and where a brief is in substantial compliance with the
rules, waiver of error will not result from the failure to include all
that [Appellate Rule 8.3] technically requires."

'^^

In Chicago South Shore & South Bend Railroad v, Brovm,^^^
the appellant petitioned for a rehearing. The petition included the
assertion that the court of appeal's opinion failed to give a state-

ment in writing upon each substantial question which arose in the

^^^317 N.E.2d 463 (Ind. Ct. App. 1974).
'5^326 N.E.2d 629 (Ind. Ct. App. 1975).

'"/d. at 631.

'"323 N.E.2d 681 (Ind. Ct. App. 1975).



1976] SURVEY—CIVIL PROCEDURE 97

record. In considering the assertion, the court of appeals discussed

Appellate Rule 11(B)(2), noting that four elements must be
present for a rehearing to be granted: (1) A substantial question;
(2) the appearance of the question both on the record and in the

argument on appeal; (3) a petition setting forth portions of the

record affirmatively establishing (1) and (2) ; and (4) a showing

in the petition of prejudice resulting from the court's failure to

give a statement in writing upon the question. The court then
stated that the appellant's failure to object to the instructions of

the trial court judge not only waived any potential error but also
resulted in a failure to satisfy the

*

'substantial question" element.

Thus, it was unnecessary to order a rehearing.
In Marshall v. Reeves^^^^ the appellant obtained a reversal of

the trial court decision granting custody to the father. On trans-
fer to the supreme court, the trial court was upheld. Subsequently, a
motion to tax costs on appeal was filed. The motion included a
request for attorney fees and discretionary damages. The supreme
court, after noting that Appellate Rule 15(G), which concerns

the costs of appeal, does not contain a right to attorney fees, went

on to discuss the viability of Appellate Rule 15 (F).^" The court
stated that a discretionary award of damages is proper where the
appeal is frivolous or without substance or merit. The damages
serve as a curb for frivolous appeals. Here, since the court of

appeals and one of the supreme court justices felt that the appeal
had merit, the appeal was not frivolous. In dicta the court restated
the holding of Vandalia Railroad Co. v. Walsh^^^ that a penalty

may be assessed where an appeal is taken merely to harass or
delay.

In J.M. Foster Co. v. Northern Indiana Public Service Co.,^^^
the defendant appealed from the overruling of his amended ob-
jection to the taking of property by eminent domain. The same
order also condemned to the use of the plaintiff an easement and
right-of-way through defendant's property and appointed ap-
praisers to determine its value. The defendant filed a motion to
correct errors to that order and subsequently filed an assignment of
errors in the court of appeals. The court of appeals held that the
filing of an assignment of errors was the proper procedure to be
followed on an appeal from an order overruling objections to con-
demnation. The order is by statute an interlocutory order' ^° to

'^^316 N.E.2d 828 (Ind. 1974).
'^^Appellate Rule 15(F) allows a discretionary award of damages against

the appellant if the judgment is affirmed. The damages cannot exceed 10%
of a money judgment.

'"44 Ind. App. 297, 89 N.E. 320 (1909).
'^^326 N.E.2d 584 (Ind. Ct. App. 1975).
'5»lND. Code §32-11-1-5 (Burns 1973).



98 INDIANA LAW REVIEW [Vol. 9:66

which no motion to correct errors need be filed. '^' The court also
noted that the sustaining of objections to condemnation by a trial
court is by stataute^*° a final judgment, to which a motion to cor-
rect errors must be directed.

In Berry v. State' ''^ the court of appeals discussed extensively

the question of whether a change in the law would be retroactively

applied. In a previous case Berry had taken an appeal in which
part of the alleged error was the correctness of a jury instruction
on the burden of producing evidence to show sanity at the time
the offense was committed.'" In upholding Berry's conviction, the
court held that the instruction given was not reversible error. Four
years later the supreme court in another case overruled the Berry
decision, holding that the jury instruction given in Berry was re-
versible error.'" Berry then applied for post-conviction relief on
the basis of the later decision. The trial court denied Berry's pe-
tition.

The question on appeal was whether the later decision would
be retroactively applied to Berry. The court of appeals set out a
three-pronged test by which retroactivity is determined: (1) The
purpose of the new rule of law, (2) reliance on the old rule by the
courts for authority, and (S) the effect of retroactive application

on the system of criminal justice.'*"^ In discussing these criteria,
the court pointed out that the tests have a rather intense practical

application. The court stated that the reliance aspect is examined
by attempting to determine whether law enforcement officers,

as well as the judicial system, have relied on the operational finality

of the old rule. The same type of approach was made by the court
in determining the purpose of the new rule, and then in ascertain-
ing whether applying it retroactively would operate to correct a

prior infringement of an individuars freedom. Although this de-
cision arose in a criminal context, the same type of analysis would
clearly be applicable across the entire spectrum of the law.

'^'Trial Rule 59(G) provides in part that "[a] motion to correct errors

shall not be required in the case of appeals from interlocutory orders . . . ."

'6°lND. Code §32-11-1-5 (Burns 1973).
^^^321 N.E.2d 207 (Ind. Ct. App. 1974).
^ "Berry v. State, 251 Ind. 494, 242 N.E.2d 355 (1968).
'"Young V. State, 258 Ind. 246, 280 N.E.2d 595 (1972).
'*^The court stated that these criteria come from two cases in the United

States Supreme Court. Tehan v. United States ex rel. Shott, 382 U.S. 406
(1966) ; Linkletter v. Walker, 381 U.S. 618 (1965). The criteria are known as
the Linkletter-Tehan test.