Indiana Law Review


24 INDIANA LAW REVIEW [Vol. 7

reduction in the amount of the employee's award simply because
the employee institutes the action rather than the employer.

It would appear that the court's holding would require em-
ployers to pay their statutorily prescribed allocation of attorney's
fees based on the gross amount of an award only when the amount
of the recovery from the third party tortfeasor equals or exceeds the
amount of the award. If the amount of recovery from the third
party tortfeasor is less than that of the gross award, then the

ratable basis of the legal expense would be the amount recovered
and not the total award made to the employee. 114

II. Civil Procedure and Jurisdiction

William F. Harvey*

The following survey of significant cases involving various
aspects of civil procedure and jurisdiction in the chronological
order of a law suit should be regarded as an overview rather than

an extensive analysis.

A. Jurisdiction and Service of Process

In Neill v. Ridner, } a case of major impact in Indiana, a
bastardy proceeding was commenced by plaintiff, seeking sup-
port for twins born in 1969. Defendant was eventually served
in Kentucky. Defendant argued that there was no personal

114
lf the total gross award was the basis for computing attorney's fees

in all circumstances, it would be possible for the attorney to receive fees in
excess of the total third party recovery. For example, assume that the gross
award to the employee is $20,000 and the amount recovered in the third
party action is $1,000. If the attorney's fees were based upon the gross
award, the attorney could receive $5000 under the statutorily prescribed

25% fee in cases in which recovery is received prior to suit. In such a situa-
tion the attorney would receive a fee five times greater than the amount
of the third party recovery.

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

versity, 1961.

The author wishes to extend his thanks to Bruce Bagni and Lawrence
Giddings for their assistance in the preparation of this discussion.

] 286 N.E.2d 427 (Ind. Ct. App. 1972).



1973] SURVEY OF RECENT DEVELOPMENTS 25

jurisdiction in the Indiana court because a bastardy proceeding

was not specifically provided for in the bases of jurisdiction listed
under Indiana Rule of Trial Procedure 4.4, because process was
served extraterritorially, and because the act complained of was
effected prior to the effective date of the trial rules.

The court of appeals, in an opinion by Judge Robertson, held
that Trial Rule 4.4(A) (2) applied to the case, in that there was
"no requirement that the act complained of be a tort as it was
known at the common law/'2 Thus the court gave clear recogni-
tion to the proposition that the jurisdiction of a trial court is not to

be defined by the concept of "tort" as it is determined in litigation,

that is, the "act" committed gives jurisdiction, and the final de-
termination as to its tortious nature will neither create nor divest

a court of jurisdiction to hear the dispute.3

In the case of Transcontinental Credit Corp. v. Simkin,
4 an

¥

action was filed in which plaintiff sought to satisfy a personal
claim by attaching property owned by the defendant which was
located in the State of Indiana. The defendant, however, was not
a resident of Indiana. On appeal from a dismissal in the trial court
for lack of jurisdiction, the defendant argued that the attachment

was an auxiliary action and it was conditioned upon obtaining a
valid judgment in the main action. The court of appeals reversed.

The court of appeals held, in effect, that a complaint for re-
covery of money may be filed together with an affidavit for attach-
ment, and in the proceeding the claim may be adjudicated and
satisfied against the property of a nonresident which is held in

the State of Indiana. The court said that the following elements
must be met: 5 (1) a complaint filed, (2) for the recovery of money,

(3) against a nonresident defendant, (4) who owns property in the
State of Indiana. The court also stated that when this type of action
is filed and there can be no personal service against a nonresident

defendant (if the "long arm" statute is inapplicable) , then publica-
tion pursuant to Trial Rule 4.13 may be sufficient for jurisdiction.

7Id. at 429 (emphasis added).

3 The court also held that extraterritorial service will give personal juris-
diction, as the Trial Rules so contemplate, if the requisite minimum contact
and adequate notice are met. See, e.g., McGee v. International Life Ins. Co.,
355 U.S. 220 (1957); International Shoe Co. v. Washington, 326 U.S. 310

(1945).

4277 N.E.2d 374 (Ind. Ct. App. 1972). See Fuentes v. Shevin, 407 U.S.
67 (1972).

5Ind. Code § 34-1-11-1 (1971) ; Ind. R. Tr. P. 64(B) (1).



26 INDIANA LAW REVIEW [Vol. 7

The claim in the action, however, could be satisfied only to the
extent of the value of the property brought before the court.

Mueller v. Mueller,6 dealt with a default judgment awarding
custody of two children some six years after the original divorce.
In seeking the custody award, the petitioner served his former

wife with process pursuant to publication, which the appellant
ultimately attacked. On appeal, the supreme court held that the
trial court had jurisdiction of the action pursuant to Trial Rule 4.4
(A) (7), as well as its continuing jurisdiction over the parties.

The court held that Trial Rule 4.4(B) allowed process by personal
service, service by certified mail, or service by publication.

The appellant, at the time of the action, had become the resi-
dent of another state and there was a showing that there was no
forwarding address available. The court sustained the process by
publication because it was the best notice possible on the facts
of the case. Therefore, the trial court had personal jurisdiction.

In Morris v. Harris,7 a primary question was raised as to
whether service of process on the Secretary of State8 tolled the

statute of limitations when service was affected after a nonresident
defendant died, but before the statute of limitations expired. An
automobile accident occurred on December 7, 1967, between plain-
tiff and defendant, the latter being an Illinois resident. On October
14, 1969, plaintiff filed suit and directed summons to be served on
the Secretary of State of Indiana. But, the defendant died on

March 18, 1968. Plaintiff later petitioned the Indiana court
to appoint a personal representative for the deceased defendant

in June of 1970.

On appeal the court of appeals held that the agency relation-
ship between the Secretary of State and the nonresident operator

was terminated by the death of the nonresident. Because the
relationship was terminated and constructive agency revoked, ser-
vice upon the Secretary of State was not effective. Thus the statute
of limitations had continued to run.

In the case of State of Florida ex rel. O'Malley v. Department

of Insurance,
9 the State of Florida entered a proceeding in Marion

6287 N.E.2d 886 (Ind. Ct. App. 1972).

7293 N.E.2d 202 (Ind. Ct. App. 1973).

8Ind. R. Tr. P. 4.4(B) (2). Specifically, on serving a nonresident motor-

ist, see Ind. Code § 9-3-2-1 (1971), which provides that if the nonresident dies,
service may be made on the executor or administrator of the nonresident's
estate.

9291 N.E.2d 907 (Ind. Ct. App. 1973).



1973] SURVEY OF RECENT DEVELOPMENTS 27

Superior Court and sought a modification of an order which con-
cerned the distribution of assets of an insurance company. The
relief sought was not granted. On appeal, the State of Florida
argued that there was no personal jurisdiction over the Florida
receiver in that the entry into the Marion County Superior Court

was a "special appearance" for purposes of challenging the juris-
diction of that court.

The court of appeals held, in an opinion by Judge Buchanan,
that there was no such appearance. The court stated that when
one entered an action or commenced an action, then pursuant to
Trial Rule 4(A), there was jurisdiction over the person who en-
tered the court. Thus, there was no "special appearance" as the
words were used by the State of Florida in the case.

The court also held that subject matter jurisdiction was never
waived and was thus properly raised on appeal. 10 The issue con-
cerned whether the State of Indiana had jurisdiction over an in-
tangible thing. The court referred to the Restatement of Conflicts^ '

and concluded that Indiana did have jurisdiction over the "in-

tangible" (which referred to the liquidation proceeding and a re-
insurance contract) because there was a greater association with
the State of Indiana in the proceeding concerning the intangible

than with any other state.

Duncan v. Binford]2 concerned an attack upon a sheriff's re-
turn. The defendant moved to set aside a default judgment on the
ground, among others, that there was a mistake and excusable
neglect because the evidence showed that the defendant did not

receive summons in the action. Defendant also alleged that he
had a meritorious defense to the action.

The court of appeals said that when a default has been entered
against a person who has not been served with process and who
thus has no notice of the action, that person is entitled to have the

10Trial Rule 12(H) (1) provides for waiver of personal jurisdiction if not
timely raised. However, lack of subject matter jurisdiction may be raised at
any time. See Cooper v. Grant County Bd. of Review, 276 N.E.2d 533 (Ind.
Ct. App. 1971).

"Restatement of Conflicts of Law §51, Comment a, at 83 (1934),
provides in part:

If any state has jurisdiction over an intangible thing, it is by reason
of some special circumstances which connect the intangible thing to
the state.

2278 N.E.2d 591 (Ind. Ct. App. 1972).



28 INDIANA LAW REVIEW [Vol. 7

judgment set aside. 13 It further stated that when a sheriff's return
shows summons has been served, it is "conclusive" to give the court
jurisdiction over the defendant, but the defendant is not estopped

from showing that summons was not in fact served upon him, and
that he had no knowledge of the action. 14 The court held that the
question would be for the trial court to determine, based upon the
evidence presented.

In the case of State ex rel. American Fletcher National Bank
& Trust Co. v. Daugherty,* 5 certain stock of an Indiana corporation
was before a probate court as part of an estate. Plaintiff claimed
that he was entitled to additional compensation because of an em-
ployment agreement between himself and the decedent, which
agreement might be affected by the vote of the stock in an annual
meeting.

The plaintiff therefore brought suit in a Marion County Super-
ior Court to seek an injunction against AFNB to prevent the voting
of the stock at any shareholders' meeting. A preliminary injunc-
tion was granted and this proceeding was commenced originally
in the supreme court as a writ against the Superior Court of
Marion County to prohibit its exercise of jurisdiction.

The court said that the legal issue involved concerned the effect
upon a court's jurisdiction of another court's acquisition of juris-
diction over the dispute, when the jurisdiction of each court was
concurrent. The court held that two courts of concurrent jurisdic-
tion cannot deal with the same subject matter at the same time and
that once jurisdiction over the parties and the subject matter has

been secured, it is retained to the exclusion of other courts of equal

competence until the case is determined. 16 Therefore the court's

writ of prohibition was made permanent, because the probate court
had full concurrent jurisdiction with the superior court and first

acquired judicial power over the estate and the stock in question.

13Dobbins v. McNamara, 113 Ind. 54, 14 N.E. 887 (1888) ; Ward v. Ward,
117 Ind. App. 225, 71 N.E.2d 131 (1947).

14Knowlton v. Smith, 163 Ind. 294, 71 N.E. 895 (1904) ; Nietert v. Trent-
man, 104 Ind. 390, 4 N.E. 306 (1885).

15283 N.E.2d 526 (Ind. 1972).

16State v. Bridwell, 241 Ind. 135, 170 N.E.2d 233 (1960); State ex rel.

Montgomery v. Superior Court, 238 Ind. 664, 154 N.E.2d 375 (1959) ; State
ex rel. Poindexter v. Reeves, 230 Ind. 645, 104 N.E.2d 735 (1952). The court
first acquiring jurisdiction retains it so long as it can render complete jus-

tice. See Demma v. Forbes Lumber Co., 133 Ind. App. 204, 178 N.E.2d 455
(1961).



1973] SURVEY OF RECENT DEVELOPMENTS 29

In Etherton v. Wyatt," the court of appeals discussed the ques-

tion of whether the Boone County Circuit Court would have juris-

diction over a case transferred from the Marion County Superior

Court which concerned a money demand against the State of In-

diana. The State argued that the Boone County Circuit Court lacked

jurisdiction over the subject matter because Indiana Code section

34_4-16-l required that the Superior Court of Marion County shall

try cases involving a money demand against the State of Indiana.

The court of appeals held that that provision was no longer
operative in fixing jurisdiction or venue in the type of case before

it. Therefore, the Boone County Circuit Court did not lack jurisdic-

tion over the subject matter of the cause. The court reasoned that
Trial Rule 75(D) negated the statutory requirement when it spe-
cifically stated that no "statute or rule fixing the place of trial shall

be deemed a requirement of jurisdiction." 13 Thus, there was
jurisdiction in the transferee court.

B. Scope of the Trial Rules

The supreme court in Jensen v. Indiana & Michigan Electric
Co.,

9 held that, pursuant to Trial Rule 1, the Indiana Rules of Trial

Procedure were applicable in full to an eminent domain proceeding
and that the parties had the right to exercise discovery as provided
and enumerated in the Indiana Trial Rules. The specific holding re-
versed a trial court decision which granted a motion to deny inter-
rogatories which were filed under Trial Rule 33. The trial court
granted the motion on the basis that interrogatories could not be

used in an eminent domain proceeding because the trial rules were
not applicable thereto.

In the case of State v. Bridenhager,20 the supreme court con-
sidered the question, which has often arisen, as to which rule or

17293 N.E.2d 43 (Ind. Ct. App. 1973).

18Ind. R. Tr. P. 75(D); Ind. Code §34-5-1-1 (1971). In explanation of
the rule, Professors Harvey and Townsend wrote:

[T]he oppressive statute formerly construed as allowing claims
against the state only to be litigated in the superior court of Marion
County has now been broadened to permit suit in any county of the
state subject only to the preferred venue requirement of Rule
75(A) ....

4 W. Harvey & R. Townsend, Indiana Practice § 75.8, at 540 (1971)

.

19277 N.E.2d 589 (Ind. 1972).

20279 N.E.2d 794 (Ind. 1972).



30 INDIANA LAW REVIEW [Vol. 7

statute will control if there is a conflict between the rules of pro-
cedure and another statute. The statute in question concerned
special notice and extension of time for the Attorney General.21

The court held that the statutory provision, to the extent that it
would make an exception to the general application of Trial Rule
72(D), was abrogated by the rule of procedure.

The court explained that in order to be in conflict with a rule of
procedure, it is "required that [a statutory provision] be incom-

patible to the extent that both could not apply in a given situation.

Thus a procedural rule enacted by statute may not operate as an
exception to one of our rules having general application."22 Further-

more, if such an exception were made, it was within the exclusive
province of the court to make it.

C. Pleadings and Pretrial Motions

In Cheathem v. City of Evansville™ the plantiff brought suit
seeking relocation expenses and moving expenses equal to other
residents. Indiana law did not then allow such payments, and
recovery under federal law was prohibited.24 Defendant filed a
motion to dismiss under Trial Rule 12 (B) (6), which the trial court
sustained, and the court of appeals affirmed.

The court stated that normally the failure to state definitely
and clearly a claim will not warrant the granting of a motion to

dismiss, that no question of fact will be determined on a motion to

dismiss under Trial Rule 12(B) (6), and that the complaint need

state only enough to enable the defendant to form a responsive
pleading. But, the court explained that the elements necessary to

give the defendants notice of the recovery theory cannot be ex-

cluded. "The detailed pleading of facts under the old code plead-
ing has been dispensed with but not the disclosure by the claimant
of the theory upon which his claim is based."25 It is not the trial
court's duty to search for all possible legal theories which may or
may not apply to statements advanced by the plantiff.26

21 Ind. Code §4-6-4-1 (1971).

22279 N.E.2d at 796.

23278 N.E.2d 602 (Ind. Ct. App. 1972).

2442 U.S.C. § 1465(e) (1970).

25278 N.E.2d at 605.

26Later in 1972, the court of' appeals reaffirmed the Cheathem holding in
City of Hammond v. Board of Zoning Appeals, 284 N.E.2d 119 (Ind. Ct. App.



1973] SURVEY OF RECENT DEVELOPMENTS 31

Subsequently, the Indiana Supreme Court in State v. Rankin,27

succinctly enunciated the requisites of a complaint and the require-

ments for a Trial Rule 12(B) (6) dismissal. In Rankin, an action

was brought by the Attorney General of Indiana against several
persons who were, allegedly, responsible for property damage at
Indiana State University.

The case was dismissed in the trial court pursuant to a motion
to dismiss filed under Trial Rule 12(B) (6). The judgment was
affirmed in the court of appeals. However, the supreme court 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"

25
' The court noted that the rules do not require

the complaint to state the elements of a cause of action and that
there are other means less drastic than dismissal of the action
which can be used to identify the theory or basis for a claim for

relief, such as Trial Rules 12(E) and 16(A) (1). The court then
cited with express disapproval the opinion found in Cheathem v.
City of Evansville.

29
Finally, the court indicated that when no

evidence has been heard and no affidavit submitted, a Trial Rule

12(B) (6) motion should be granted only when it is clear from
the face of the complaint that under no circumstances could relief

be granted.

In American States Insurance Co. v. Williams,30 the court of
appeals held that when a complaint shows on its face that it was
filed subsequent to the running of the statute of limitations, a mo-
tion to dismiss under Trial Rule 12(B) (6) is a proper mechanism
to attack the complaint and the claim for relief. The court of ap-
peals further explained the function of a Trial Rule 12(B)(6)

1972). In this writer's opinion, the position taken by the court of appeals
in both cases presents serious difficulties. First, in a complaint, in notice

pleading, it should be less necessary to state a "theory" than to state even

"facts." (If the product being used fails, was it "negligence" or "breach of
warranty?" In the complaint, the answer should be, does it really matter?)
Secondly, the statement expressed in those two cases is not consistent with
another line of cases from the same court. See, e.g., Gladis v. Melloh, 273
N.E.2d 767 (Ind. Ct. App. 1971). The supreme court agreed with this analysis
and overruled the Cheathem decision. See State v. Rankin, 294 N.E.2d 604
(Ind. 1973).

27294 N.E.2d 604 (Ind. 1973).

2bId. at 606. See also Sacks v. American Fletcher Nat'l Bank & Trust
Co., 279 N.E.2d 807 (Ind. 1972).

29278 N.E.2d 602 (Ind. Ct. App. 1972).

30278 N.E.2d 295 (Ind. Ct. App. 1972).



32 INDIANA LAW REVIEW [Vol. 7

motion and its relation to affirmative defenses in Lacey v. Mor-
gan.3 ' Suit was brought upon an oral contract for the sale of real
estate, which appeared, initially, to fall within the Statute of
Frauds.32 The trial court therefore sustained the motion to dis-
miss, and indicated that various receipts which were filed with
the complaint were insufficient to sustain an exception to the
statute.

The court of appeals, in reversing, held that the complaint
should have been sustained against the attack because "where the
complaint shows the plaintiff may be entitled to some relief the
complaint is not to be dismissed even though [the plaintiff] is
not entitled to the particular relief for which he has asked in his
demand for judgment."33 The court of appeals did not disagree
with the trial court, and it did not express an opinion on the mer-
its of the act. It said, simply, that recovery depends upon the
plaintiff's ability to carry the evidentiary burden in the proceeding.

The court of appeals thus held that a complaint should not be
dismissed unless it appears beyond doubt that the plaintiff can

prove no set of facts in support of his claim.

Trial Rule 8(C) should be noted at this point. Under that rule,
the Statute of Frauds is an affirmative defense, which the defend-
ant usually must set out in his answer. A question which has often
arisen is whether, and to what extent, an affirmative defense can
be asserted by way of a motion to dismiss under Trial Rule 12
(B) (8). This case held, implicitly, that it is entirely correct to

permit the raising of an affirmative defense by way of a Trial
Rule 12(B) (6) motion.

In the case of Salem Bank & Trust Co. v. Whitcomb 34 a
question arose whether a motion to dismiss, which was filed pur-
suant to Trial Rule 12(B)(6), should be determined under the

requirements of Trial Rule 12(B)(8), which states that under
certain circumstances the motion to dismiss shall be treated as

and disposed of pursuant to Trial Rule 56. In this case, after

filing a motion to dismiss under Trial Rule 12(B) (6), the defen-

dants gave answers to interrogatories propounded by the plaintiff

which were duly filed with the court.

31 282 N.E.2d 344 (Ind. Ct. App. 1972).

32Ind. Code §32-2-1-1 (1971).

33282 N.E.2d at 346.

34289 N.E.2d 537 (Ind. Ct. App. 1972).



1973] SURVEY OF RECENT DEVELOPMENTS 33

The court of appeals held that because the interrogatories were
filed and answered and made a part of the record of the case be-
fore the trial judge ruled on the motion to dismiss, and the inter-
rogatories were not excluded from the record of the trial court,
the motion to dismiss pursuant to Trial Rule 12(B)(6) should
have been treated as if made pursuant to or under Trial Rule
12(B) (8) and thus converted into a motion for summary judg-
ment.35 The court of appeals also stated that if the interrogatories
had not been filed and made a part of the record, the provision
of Trial Rule 12(B) (8) would have been inapplicable.

In Burcham v. Singer,36 the defendants, in resisting a motion
for summary judgment, filed an affidavit in which they stated
that there "is a dispute as to material facts giving rise to this

law suit." The trial court granted the motion for summary judg-
ment, and on appeal, the court of appeals held that the affidavit
entered by defendants was not sufficient to show a genuine issue
of material fact pursuant to Trial Rule 56.37

The question as to whether a trial court commits reversible
error in refusing to allow the defendant to testify at a summary
judgment hearing was answered by the court of appeals in Deckard
v. Mathers.

26 The court held that pursuant to Trial Rule 56(E),
it was within the discretion of the trial judge whether to permit
a witness to testify. The court stated there was therefore no abuse
of discretion in refusing the testimony.

In Thompson v. Abbett,39 the court of appeals discussed the
question whether, in a breach of contract suit, a defendant's claim

qualified as a counterclaim or merely an affirmative defense. In

addressing this question, the court stated that, consistent with

35The court cited several federal cases with similar problems under Fed-
eral Rule of Civil Procedure 12(b)(6), which for all practical purposes is
identical to Indiana's motion to dismiss. Generally, federal courts have con-

sidered a federal rule 12(b) (6) motion to encompass matters contained in the

complaint. See, e.g., Grand Opera Co. v. Twentieth Century-Fox Film Corp.,
235 F.2d 303 (7th Cir. 1956). Once material outside the pleadings is pre-

sented to, and not excluded by, the court, the motion is treated as a motion

for summary judgment. See, e.g., Smith v. United States, 362 F.2d 366 (9th
Cir. 1966) ; Allison v. Mackey, 188 F.2d 983 (D.C. Cir. 1951).

36277 N.E.2d 814 (Ind. Ct. App. 1972).

3 defendants clearly failed to set forth specific facts demonstrating a
genuine issue to the court. It is not enough for a pleader to state "there is a
genuine issue" without defining that issue.

38284 N.E.2d 92 (Ind. Ct. App. 1972).

39290 N.E.2d 468 (Ind. Ct. App. 1972).



34 INDIANA LAW REVIEW [Vol. 7

prior Indiana case law,40 there are two tests to determine if the
material pleaded constituted a counterclaim. The first test, the
court said, is whether the defendant is entitled to an affirmative
judgment. Secondly, would the defendant be able to continue to
trial on his claim in the event the plaintiff dismissed his cause
of action?

The court stated that a reading of the defendant's pleading
showed that it fulfilled the requirements of a counterclaim and
was not merely an affirmative defense. The court noted that the
prayer for relief set forth a request for affirmative relief in the

form of a money judgment. Additionally, the counterclaim passed
all tests for stating an independent cause of action.

The court of appeals gave a significant interpretation to the
Trial Rules which touch upon counterclaims in Commercial Credit
Corp. v. Miller.

41 In that case the plaintiff, Commercial Credit,
brought suit for the immediate possession of an automobile, and
defendants filed a counterclaim. The counterclaim was captioned
"Cross-complaint," and was not, therefore, a "denominated coun-
terclaim" in the language of Trial Rule 7(A) (2). Nevertheless,
the court held that, pursuant to Trial Rule 8(D), the plaintiff

was in default for failing to file a reply to the counterclaim. The
court stated that : "we note that [defendants] have captioned their
counterclaim a 'Cross-complaint.' However, under the current

Rules of Procedure, the court is to treat the motions and plead-

ings for what they actually are, irregardless of how they are cap-
tioned."

42

It should be observed that the real issue is not how a court
should treat a pleading or a document, but what is the effect to
be visited upon a party for failing to reply. In short, it was not
the trial court which defaulted, but the party ; hence how a court
treats a pleading within its scope of judicial flexibility, is quite

a different matter than how a party must respond. In any event,
a rule of practice would seem to derive from this case : always file
a reply.

40The court cited State ex rel. Ziffrin v. Superior Court, 242 Ind. 246,
177 N.E.2d 898 (1961), as establishing the two tests for determining a coun-

terclaim.

41 280 N.E.2d 856 (Ind. Ct. App. 1972).

A2Id. at 860 n.l. See De Vito v. Hoffman, 199 F.2d 468 (D.C. Cir. 1952)
(a pleading denominated a "supplemental complaint" was treated as a coun-
terclaim) .



1973] SURVEY OF RECENT DEVELOPMENTS 35

In Aldon Builders, Inc. v. Kurland,43 the trial court concluded,
after specially finding facts, that among the parties there was a
rescission of their agreement. The appellant claimed error. The
court of appeals agreed because the record failed to disclose that

the issue of a rescission was ever raised or litigated. The court of
appeals held that, consistent with Trial Rule 15(B), when issues
not raised by the pleadings are tried by express or implied con-
sent of the parties, they shall be treated as if they were raised by
the pleadings. However, a mere failure to object is not the only
requirement necessary to raise an issue by implication. Both par-
ties must litigate the new issue, and the evidence which supports
the presence of that new issue must not be adduced by asking
questions about an issue already pleaded. In that way, the court
indicated, a party will be given some notice that an issue not
pleaded, or raised in a pretrial order, is before the court.

44

In the case of Hawkins v. Kourlias,45 the plantiff brought
an action for ejectment and defendant filed a counterclaim. On
appeal the plaintiff contended that the jury verdict and the

judgment were not within the scope of the pleadings for the
evidence submitted. The court of appeals disagreed and pointed
out that at the conclusion of the defendant's evidence, defense

counsel made a motion to amend all pleadings to conform with
the evidence. The record showed that all pleadings were amended
to conform to the evidence, and thus the court found no error

in the point raised.

Trial Rule 15 received further interpretation in Ryser v.
Gatchel,

46 which involved the incorrect naming and designation
of a party. The case arose on appeal from a summary judgment
order, and during the course of the opinion the court discussed
the "relation back doctrine" of Trial Rule 15(C) and the method
by which the question of whether or not a defendant had or should
have had notice of the filing of an action could have been raised,
although it was not so raised in the trial court.

The court stated that the plaintiff should set forth sufficient
facts to show whether the originally misnamed defendant had

43284 N.E.2d 826 (Ind. Ct. App. 1972).

44
Id. at 832. The court held that notice is particularly important when

"the new issue is not unequivocally clearly the evidence being submitted."
Id. See Hacker v. Review Bd., 271 N.E.2d 191 (Ind. Ct. App. 1971).

45282 N.E.2d 551 (Ind. Ct. App. 1972).

46278 N.E.2d 320 (Ind. Ct. App. 1972).



36 INDIANA LAW REVIEW [Vol. 7

"received such notice of the institution of the action" and whether
defendant "knew or should have known . . . the action would
have been brought against him"47 so as to raise the question
pursuant to Trial Rule 15(C). The court said, however, that
such was not the situation in the case on appeal, and therefore,
the court did not determine the question.

The supreme court provided significant guidelines regarding
the usage of the "Lazy Judge Rule" (Trial Rule 53.1) in the
case of Lies v. Ortho Pharmaceutical Corp.46 In two separate
holdings the court established several principles. First, the pro-
cedure outlined in Trial Rule 53.1 is the appropriate vehicle for
correcting the deficiency of failure to rule a posttrial motion.
The court said that Trial Rule 53.1 should be read in conjunction
with Trial Rule 63(A). Second, the filing of briefs or memoranda
relative to motions on file will not extend the time permitted
a trial judge under Trial Rule 53.1 (A) for ruling upon the motion.49

If additional time is required for briefing and consideration in
the trial court, counsel should agree pursuant to the Trial Rule
and the ruling date should extend to the date set pursuant to the
order book entry which is made in accordance with the agreement.
Otherwise, the supreme court said, the trial court has no alterna-
tive but to rule even without full consideration of the briefs.

Alternatively, the trial court could apply to the supreme court
for an extension of time pursuant to the rule. Third, when a
praecipe is filed pursuant to this rule, it may be withdrawn by
the party who filed it, subject, of course, to a praecipe being filed
by another party; and once notice is filed in the supreme court

it may be quashed only by a motion filed in the supreme court.
Finally, the court held that the trial court may not adopt a rule
which is inconsistent with these rules or which is an impingement

thereon. The court referred to Rule 6 of the Circuit and Superior
Courts of Marion County, which generally stated that counsel

shall give five days' written notice prior to the expiration of

the thirty-day period found in Trial Rule 53.1.50 Relying on

47Ind. R. Tr. P. 15(C).

48284 N.E.2d 792 (Ind.), petition for withdrawal of opinion denied, 286
N.E.2d 170 (Ind. 1972).

49Whenever the judge shall delay a ruling beyond thirty days, the clerk
shall, upon the filing of a praecipe by an interested party, give written notice
to the judge and the supreme court of the withdrawal of the motion. The
withdrawal and disqualification are effective as of the time of the filing of
the praecipe. Ind. R. Tr. P. 53.1(B).

50Lies v. Ortho Pharmaceutical Corp., 286 N.E.2d 170, 172 (Ind. 1972).



1973] SURVEY OF RECENT DEVELOPMENTS 37

Trial Rule 81,
51

the supreme court stated that that trial court
rule was invalid because it was inconsistent with the Trial Rules.

Rolf v. Rolf
52

also involved Trial Rule 53.1. In this case,
the defendant in the action filed a praecipe to withdraw the action
from the court because ninety-two days had elapsed after sub-
mission of the issues and a motion. The trial judge stated in an
affidavit that he was in the process of preparing both findings
of fact and conclusions of law. The trial court also stated that
prior to the time the praecipe was filed he had entered a judgment
for the plaintiff on the bench docket.

The supreme court held that an entry of judgment on the
bench docket would not be a sufficient entry to satisfy this rule,
that the entry which should have been effected was upon the
order book, and that, therefore, the praecipe should have been
considered as timely filed because there was in fact no order
book entry. The court stated specifically that when a party is
acting without notice that a judgment is forthcoming and when
there is nothing in the clerk's office (in the order book), or

in the "work in process" which would indicate a judgment or
ruling had been entered, the praecipe should be deemed effective
when filed. The court stated that that procedure would be fairer
to all parties than any other.53

D. Pretrial Procedures and Discovery

In the case of Martin v. Grutka,54 the trial court entered a

summary judgment at a pretrial conference. On appeal, the ap-
pellants argued, in part, that there was inadequate notice of the
summary judgment proceeding and that the pretrial conference
was not a proper place for it. The court of appeals held that even
if there were no prior notice (in fact the motion for summary
judgment was made over four months before it was considered at
the pretrial conference), and even without actual notice that

the summary judgment would be considered at the pretrial con-
ference, the appellants must be deemed to have had constructive

51 Trial Rule 81 specifically allows local courts to make and amend local
rules which are not inconsistent with the Trial Rules.

52287 N.E.2d 865 (Ind. 1973).

53The court held that a party will not be required to check the judge's
bench docket and that the timeliness of the praecipe should be determined
from the records maintained in the clerk's office. Id. at 867.

54278 N.E.2d 586 (Ind. Ct. App. 1972).



38 INDIANA LAW REVIEW [Vol. 7

notice because of Trial Rule 16(A), which provides in part that
the trial court may consider any matter at the pretrial con-
ference which may aid in the disposition of the action.

The court of appeals in Troxel v. Otto,55 held that an isolated,
inadvertent remark or statement by counsel, even though pre-
judicial, may not constitute reversible error, but that a persistent
attempt to influence a jury by irrelevant and prejudicial comments,
especially after the trial court has ruled such conduct improper, is
misconduct causing reversal. In this case there was repeated ref-
erence to another accident which killed the deceased. The court
also indicated that alert counsel may protect himself against pos-
sible misconduct by means of a pretrial order determining ad-
missibility whenever trial preparation discloses evidence of a
highly prejudicial nature which may or may not be admissible.56

Here, the court implicitly recognized a procedure known as a
motion in limine.

In the case of Burris v. Silhavy 57 the court of appeals ex-

plicitly recognized as a part of Indiana civil practice the motion
in limine. The case in which this arose was a personal injury
action, which was tried a second time. Prior to the second trial,
the defendants filed a motion in limine in which they sought a
protective order concerning reference to certain evidence in the

case by the plaintiffs or plaintiffs' counsel. The order was granted
and trial proceeded before a jury.

On appeal the plaintiff-appellant raised the question whether
Indiana would recognize the use of a motion in limine. The court
stated that the use of a motion in limine emanates from the in-
herent power of the trial court to exclude or admit evidence
in the furtherance of its obligation to administer justice in the

case. Thus the court said motions in limine are a part of Indiana
practice although not specifically recognized by either statutory

or procedural rules. Concerning the motion, the court stated that

it is used either before or after the beginning of a jury trial as

a protective order prejudicial questions and statements. The pur-

pose in filing the motion is either to suppress evidence or to in-

struct opposing counsel not to offer it in order to prevent pre-

judicial questions and statements in the presence of a jury.

55287 N.E.2d 791 (Ind. Ct. App. 1972).

56See Ind. R. Tr. P. 16 (A), (J).

57293 N.E.2d 794 (Ind. Ct. App. 1973).



1973] SURVEY OF RECENT DEVELOPMENTS 39

The supreme court in Sacks v. American Fletcher National
Bank & Trust Co.,56 had before it on a motion to transfer the
question whether or not a motion to dismiss should be automatically

granted if an indispensable party was absent in the litigation. The
defendants moved to dismiss a complaint, which alleged in part
a derivative action, on the grounds that the receiver of the corpora-

tion involved had not been made a party, leave of the receivership
court having been sought and denied, and the receiver is an in-

dispensable party to the stockholder's derivative action.

The supreme court, citing Ross v. Bernhardt,59 held that a cor-
poration is a necessary party in a derivative suit, and that if the

corporation is in the hands of a receiver at the time, then the re-

ceiver is a necessary party, in that he represents the corporation.

Further, as a condition precedent, leave to sue the receiver must be
obtained from the receivership court. However, the court held that
the absence of a party called indispensable does not mean that the
case shall automatically be dismissed. The court also stated that this
alone is not sufficient reason to sustain a motion to dismiss. Rather,

the trial court must determine whether it is feasible to join the
party, and if not, dismissal would not necessarily follow.

Indiana Trial Rule 32(A) (3) (c), provides, in part, that a
deposition of a witness, whether or not a party, may be used for
any purpose by a party, if the trial court finds that the witness
is unable to attend or testify because of age, sickness, infirmity

or imprisonment.60 The court of appeals discussed this provision in
Schoeff v. Mclntire.

6]
In this case the appellee-plaintiff brought

suit for injuries sustained while riding in a friend's automobile.

Prior to trial, the appellant's counsel took the plaintiff's deposi-

tion, all of which was offered at trial and admitted over objection.
The objection was on the ground, among others, that the plaintiff's
deposition could not be used in that the basis for use was not
shown. There was no reason that plaintiff could not come to court,

56279 N.E.2d 807 (Ind. 1972).

59396 U.S. 531 (1971). The corporation is an indispensible party, and
failure to make the corporation a party leaves the stockholder without a cause
of action and the court without jurisdiction. 13 W. Fletcher, Private Cor-
porations § 5977, at 456 (perm. rev. ed. 1970)

.

60Testimony by deposition is less desirable than actual oral testimony and
should be used only when the nonparty witness is not available or when ex-
ceptional circumstances necessitate its use. G.E.J. Corp. v. Uranium Aire,
Inc., 311 F.2d 749, 755 (9th Cir. 1962).

61 287 N.E.2d 369 (Ind. Ct. App. 1972).



40 INDIANA LAW REVIEW [Vol. 7

defendant argued, if the plaintiff could go downtown and otherwise
perform daily tasks.

The trial court admitted the depostion. The plaintiff pre-
sented the testimony, on the point, of a doctor who said that plain-
tiff suffered a congestive heart failure and that in his judgment
to appear and testify would be injurious to her health. The court
of appeals held that the record was sufficient to justify the
trial court's finding that the witness was unable to attend for
reasons of sickness and infirmity. Thus the deposition was fully
admissible.

In the case of Wynder v. Lonergan,67 a personal injury action,
the defendant took the deposition of the plaintiffs doctor, parts
of which were offered into evidence by the plaintiffs. The trial
court excluded parts of the deposition because it constituted hearsay
evidence, even though there was no objection by the defendant
at the time the deposition was taken. The court of appeals held63

that, contrary to the plaintiff's argument, there was no waiver
by the defendant in failing to object at the deposition. The court
held that Trial Rule 32(B) is qualified and limited by Trial
Rule 32(D) (3), in that the latter provision sets out eight grounds
for objection,

64 and objection to inadmissible testimony is not
waived by failing to object at the deposition unless the objection
falls within one of the eight categories, which was not the case
here.

The supreme court in Chustak v. Northern Indiana Public
Service Co.,

65
discussed Trial Rule 34 and the possibilities of

waiving the rights therein. In that case, a proceeding was com-
menced to appropriate a right-of-way for electrical transmission
lines. The defendant in the action filed a request to produce doc-
uments pursuant to Trial Rule 34. Thereafter, the defendant
filed an objection to the eminent domain proceeding and a motion
to produce the documents previously designated. The parties pro-

62286 N.E.2d 413 (Ind. Ct. App. 1972).

63The court also held that, pursuant to Trial Rule 32(C), a party does
not make a witness "his own" by taking his deposition.

64Trial Rule 32(D) (3) (a) -(c) requires reasonable objection to: (1) com-
petency of a witness, (2) competency, relevancy, or materiality of testimony,

(3) manner of taking depositions, (4) form of questions and answers, (5) er-
rors in oath or affirmation, (6) conduct of the parties, (7) other form de-
fects, and (8) form of written questions submitted under Trial Rule 31.

65288 N.E.2d 149 (Ind. 1972), noted in 6 Ind. L. Rev. 781 (1973).



1973] SURVEY OF RECENT DEVELOPMENTS 41

ceeded to an evidentiary hearing upon the objection at the con-
clusion of which the court, without ruling on the motion to produce,
ordered the appropriation and appointed appraisers.

The supreme court stated that it could not assume that the
trial court overruled the written motion to produce, because no

ruling appeared. However, the court held that by proceeding with-

out protest and without a ruling, the defendant waived any error
that might have been averted. The court then extensively discussed
Trial Rule 34 and pointed out that the defendants were seeking dis-

covery of the plantiff's computations concerning the width of the

desired right-of-way. Since the computations were not made in
preparation for litigation, but rather in the ordinary course of the

utility company's business, the discovery was controlled by Trial
Rule 34, and pursuant to that rule the computations were discover-
able.

66

The court of appeals, in Hiatt v. Yergin,67 established the de-
finitive guidelines for trial by jury in Indiana. In this case,

plaintiff filed suit asking for specific performance as well as

damages and made a general demand for trial by jury. That is,
plaintiff demanded trial by jury on issues formed on the plead-
ings in the case.

The court stated that the primary issue68 was whether there
was a right to trial by jury in causes in which one or more of the
issues of fact are of exclusive equitable jurisdiction and others are
not. The basic problem in the case was whether, under the new
rules, equity, having once acquired jurisdiction in a dispute, would
also litigate the legal issues raised in the case. Thus the court was
confronted with the question of whether the federal cases of Beacon
Theaters, Inc. v. Westover,69 and Dairy Queen, Inc. v. Wood,70 would
be used to expand the right of trial by jury when it did not exist

66'b The court also stated that a party may not wait until the last possible
moment to act and then, in reliance upon the rules of discovery, expect the
court to halt the proceedings in order to accommodate that party's motion.
Id. at 154.

67284 N.E.2d 834 (Ind. Ct. App. 1972). It is this writer's opinion that
Hiatt will become a leading case on the subject of trial by jury under the
merged system of law and equity and notice pleading.

68The court, after extensively reviewing Indiana statutory and case law,
also held that Trial Rule 38(A) governs both Trial Rules 38(C) and 39
(A)(2).

69359 U.S. 500 (1959).

70369 U.S. 469 (1962).



42 INDIANA LAW REVIEW [Vol. 7

at common law. Those United States Supreme Court cases held
generally, that when legal issues are raised with equitable issues,
the legal issues shall be tried first by a jury. This means that a
finding by the jury would be binding upon the court in a subsequent
dispute at equity.

The court of appeals rejected those decisions for the reason that
the decisions were not pursuasive even in the federal judicial
system and were contrary to both the common law and Indiana
common law/ 1 Therefore, the court stated that because issues
at law would not automatically be elevated for trial purposes
over issues in equity, the question was how, given merged systems,
is a trial court to determine whether or not there is a right to
trial by jury. The court answered this question in the following
manner: "Where the pleadings are of the notice variety, the
trial court must necessarily turn to the totality of the proceedings
before it to ascertain whether the claim of the party seeking a
jury trial is essentially equitable or legal in nature."72 The court
stated that Trial Rule 16(A) (1) provides an excellent opportunity
for the trial court to develop the issues by requiring the attorneys
to participate in a pretrial conference for that purpose.

73

E. Trial and Judgment

The court of appeals in McClure v. Austin74 articulated the
proper standard of appellate review of cases resulting in a judg-

ment on the evidence (directed verdict). The court held that a
judgment on the evidence entered by a trial court may be affirmed
if there is a total absence of evidence or reasonable inferences

therefrom in favor of the plaintiff upon the issues. If there is

any evidence or reasonable inferences drawn therefrom which
might support the plaintiff, then the judgment on the evidence

is improper.

7 'The court of appeals reasoned that since the seventh amendment to the
United States Constitution applies only to civil trials in federal courts, the

states may develop their own body of law concerning the right to trial by
jury in civil matters. 284 N.E.2d at 849.

72
Id. at 847.

73Ind. R. Tr. P. 16(A) (1) provides that, except in criminal actions, the

court may, at its discretion, and shall, upon the motion of any party, direct

the attorney for the parties to participate in a conference before the court

to consider simplification of the issues.

74283 N.E.2d 783 (Ind. Ct. App. 1973).



1973] SURVEY OF RECENT DEVELOPMENTS 43

In the case of Estes v. Hancock County Bank/5 the plaintiff
brought suit against the defendant bank and its president alleging
the tort of malicious prosecution. The jury returned a verdict
against the bank and in favor of the bank president. Thereafter
the plaintiff and the bank each made a motion for a judgment on
the evidence, but upon different grounds.

The supreme court held that the effect of both parties' asking
for a judgment on the evidence pursuant to Trial Rule 50 was to
withdraw the case from the jury and to submit the case to the
court for its determination. The court stated that the case would
then be considered as if it had been tried without a jury.
The court also held that because parties failed (and neither
party so moved) to ask for a new trial, but asked instead for a final
determination by the trial court, the scope of review would be
limited to a consideration of the trial court's judgment as entered.
By implication, the court stated that the failure to ask specifically
for a new trial would foreclose granting thereof in the court of
appeals. The case would seem to be contrary to the language
found in Trial Rule 50(C).

Trial Rule 52(A) was judicially clarified by the court of
appeals in two 1972 decisions. In Colonial Life & Accident Insur-
ance Co. v. Newman/6 the appellant argued that pursuant to Trial
Rule 52(A), a trial court should be required to set out its reason-

ing, showing how the facts found are related to the conclusions
so to render an understanding of the final judgment. The court of
appeals held, consistent with the language of the rule, that the

trial judge is not so mandated.

The rule was further delineated in In Re Adoption of Graft/
7

wherein the question was raised whether a trial court, when trial
is to the court, must in all cases enter findings of fact and render

conclusions of law thereon pursuant to Trial Rule 52(A). The

court of appeals held that the trial court is not required to make
special findings of fact unless requested pursuant to the rule.

Furthermore, the rule does not require that the trial court make
conclusions of law. Specifically, the rule states that upon its own
motion, or the written request of any party filed with the trial

court prior to the admission of evidence, the court shall find

75 289 N.E.2d 728 (Ind. 1972).

76284 N.E.2d 137 (Ind. Ct. App. 1972).

77288 N.E.2d 274 (Ind. Ct. App. 1972).



44 INDIANA LAW REVIEW [Vol. 7

specially and state its conclusions thereon.73 The court stated that
a waiver was entirely possible unless the request was made to
the trial court before the admission of evidence in the case.

In the case of Buell v. Budget Rent-A-Car, Inc., 79 a question
was raised on appeal whether the judgment entered was improper
because it was inconsistent with the pleadings in the case. That
is, the judgment entered was for a money judgment whereas the
complaint was solely for declaratory relief to determine whether
taxes were due and if so to determine the method used for col-

lection. The treasurer of Marion County argued that the judgment
did not conform to the pleadings. The court of appeals answered

that a plaintiff is not limited to a recovery or a theory of re-

covery which is designated in his complaint/
80

In Bloom's Lumber & Crating, Inc. v. James,S1 the supreme
court held that a ruling of a trial court in a case which was tried
to the court, which ruling shall constitute the findings of fact

and judgment entered, must be entered of record to be effective.
The court said that the trial court speaks only through its of-
ficial records, the primary record being its order book. Litigants

are charged with notice of what the order book contains.

The court also said that the absence of an order book entry
can be corrected nunc pro tunc,82 but that such an entry does
not contemplate an entirely new entry when made. That is, a

78The fact that the trial court is not required by Trial Rule 52(A) to
make special findings of fact, unless requested, presents no change from prior
procedural law. Compare Ind. R. Tr. P. 52(A) with ch. 38, §394, [1881]
Ind. Acts. Spec. Sess. 240 (repealed 1970). See Vogel v. Harlan, 277 N.E.2d

173 (Ind. Ct. App. 1971) ; Arnett v. Helvie, 267 N.E.2d 864 (Ind. Ct. App.

1971) ; Langford v. Anderson Banking Co., 258 N.E.2d 60 (Ind. Ct. App.
1970). There is, however, a difference between Trial Rule 52(A) and the
corresponding federal rule 52(a). The federal rule requires special findings
of fact and conclusions of law in all actions tried to the court without the
intervention of a jury.

79277 N.E.2d 798 (Ind. Ct. App. 1972).

80The rule that "plaintiff must recover on the theory of his complaint or
not at all" was abrogated in Indiana in Morrison's S. Plaza Corp. v. Southern
Plaza, Inc., 252 Ind. 109, 246 N.E.2d 191 (1969). Plaintiff is bound by the
allegations in his complaint only in that he may not, over objection, prove
facts which are irrelevant to issues raised in the pleadings. See Wyler v.
Lilly Varnish Co., 146 Ind. App. 91, 252 N.E.2d 824 (1969).

8, 285 N.E.2d 822 (Ind. 1972).

&2See Leonard v. Broughton, 120 Ind. 536, 22 N.E. 731 (1889) ; Chrissom

v. Barbour, 100 Ind. 1 (1885).



1973] SURVEY OF RECENT DEVELOPMENTS 45

written memorial or entry must exist in order to establish a basis
for effecting a correction.

63

The issue arose when the defendants' proceeded pursuant
to Trial Rule 53.2 to remove the trial judge after the case was
tried, because it was under advisement more than 90 days prior
to the filing of a praecipe with the clerk for removal of the trial

judge and the appointment of a special judge. The chronological
sequence was that the trial court exceeded the ninety day period

for having a tried case under advisement and on the 107th day

the trial court decided the case but made no entry. Then, fourteen
days later, the court notified the plaintiff of its decision and entered

it upon its bench docket. Thereafter, the defendant requested that

the case be withdrawn, as stated above. After that request was

made, the trial court stated to the clerk that judgment had been

rendered prior to the filing of the praecipe and proceeded to

enter a judgment nunc pro tunc, back dated to the 107th day.
84

The issue as to whether a verdict can be impeached by
a juror's affidavit was before the court of appeals in Anderson
v. Taylor*5 The court considered the question whether jurors'
affidavits stating that the jury, specifically eight members thereof
did not understand the meaning of the word "wanton" and reveal-
ing that they had asked the bailiff for a dictionary, would be

reviewed to impeach the verdict. The court held that the law for

many years has been settled that a juror can not impeach his
verdict by an affidavit. 86

83The court continued, "But entries may not be entered nunc pro tunc
from thin air." 285 N.E.2d at 825. See Cook v. State, 219 Ind. 234, 37 N.E.2d
63 (1941).

64
It was against this background that the supreme court developed its

holdings. It was further asserted that counsel did not, prior to the filing of
his praecipe, indicate to the court that he desired rulings in the pending case.
The supreme court stated that he was not required to do so. See Lies v.
Ortho Pharmaceutical Corp., 284 N.E.2d 792 (Ind.), petition for withdrawal

of opinion denied, 286 N.E.2d 170 (Ind. 1972), noted at p. 36 supra.

85289 N.E.2d 781 (Ind. Ct. App. 1972).

a6For example, the Indiana Supreme Court had previously stated:

A jury's verdict may not be impeached by testimony of the jurors.
Even the slightest consideration of such practice under these circum-
stances would create an intolerable situation and no jury verdict
would ever be lasting or conclusive.

Wilson v. State, 253 Ind. 585, 591, 255 N.E.2d 817, 821 (1970). See also

Spannuth v. Cleveland, C.C. & St. L. Ry., 196 Ind. 379, 148 N.E.2d 410 (1925)

;

Mitchell v. Parks, 26 Ind. 354 (1866) ; Jessop v. Werner Transp. Co., 147 Ind.
App. 408, 261 N.E.2d 598 (1970).



46 INDIANA LAW REVIEW [Vol. 7

F. Appeal

In the case of City of Mishawaka v. Stewart,57 an appeal
was taken to a circuit court from a determination by the Board
of Public Works and Safety of the City of Mishawaka. After that
court's decision was rendered, an appeal was taken to the court
of appeals. In the court of appeals, the question was raised whether
a motion to correct error filed in the trial court was (a) a condition
precedent to the appeal, and (b) the correct motion, in view
of the proceeding, to file in trial court. The court of appeals
held that a motion pursuant to Trial Rule 59(G) was correct and
that it was a condition precedent to perfecting an appeal from the
circuit court.

58

In the case of Ver Hulst v. Hoffman,*9 the plaintiff timely
moved under Trial Rule 59 to correct error. After the sixty-day
period expired, plaintiff moved to amend the motion to correct
errors. This point was raised on appeal, and the court of appeals
held, in an opinion by Judge Sharp, that the plaintiff-appellant
could not amend the motion to correct error because the sixty-day
period had run.90 Conversely, the court said the motion could
be amended or supplemented within the sixty-day period.

In Brennan v. National Bank & Trust Co., 9) sl motion to
dismiss the appeal was filed because appellant failed to file a
praecipe designating what was to be included in the record of
proceedings, which was to be filed within thirty days after the
trial court's ruling on the motion to correct error. The appellant
argued that the purpose of Appellate Rule 2(A) was to assure
that appeals shall be submitted within ninety days after the motion

to correct error, and that in this case the appeal was submitted
within ninety days, with no extension of time requested. Thus,

appellant said that he should not be penalized because the praecipe

a7291 N.E.2d 900 (Ind. Ct. App. 1973).

68Bradburn v. County Dep't of Pub. Welfare, 266 N.E.2d 805 (Ind. Ct.
App. 1971) ; Lows v. Warfield, 259 N.E.2d 107 (Ind. Ct. App. 1970).

69286 N.E.2d 214 (Ind. Ct. App. 1972).

90The sixty-day period allowed by Trial Rule 59(C) is mandatory, as was
the thirty-day period under the prior rules. Compare Brunner v. Terman,
275 N.E.2d 553 (Ind. Ct. App. 1971), with Smith v. Spitznogle, 142 Ind. App.
575, 236 N.E.2d 184 (1969). As to the prior rule regarding amended or sup-
plemental motions filed after the expiration date, see Beck v. State, 244 Ind.

237, 170 N.E.2d 661 (1960) ; Smith v. First Nat'l Bank, 104 Ind. App. 299,
11 N.E.2d 58 (1937).

91 288 N.E.2d 573 (Ind. Ct. App. 1972).



1973] SURVEY OF RECENT DEVELOPMENTS 47

was not filed within thirty days after ruling on the motion to
correct error. The court of appeals held that the thirty days
praecipe rule was mandatory and the failure to file meant that
the right of appeal was forfeited. The court therefore dismissed
the appeal.

In Miles v. State,92 the court of appeals affirmed a conviction

in a case in which, on appeal, the error alleged was the insuf-
ficiency of the evidence. It was further alleged that there was no
transcript of the evidence included in the record and no approved
statement of the evidence pursuant to Appellate Rule 7.2(A)

(3) (c). The court of appeals held that the conviction must be
affirmed because when the only question raised was sufficiency
of evidence, it was imperative that transcript of the evidence
and an approved statement of the evidence be provided.93 Other-
wise, the court said that the only alternative would be to guess
whether the trial court should be reversed or sustained. Because
these procedures were not followed, the conviction was affirmed.

Bell v. Wabash Valley Trust Co.94 held that because a praecipe
was not filed, pursuant to Appellate Rule 2, within thirty days
after the overruling of a motion to correct error, the appeal

was not effective. The suit was originally filed to terminate a
trust, which eventually resulted in a trustees' statement with a

judgment rendered thereon. That judgment was subject to the
right of appeal. The appellants filed a motion to correct error
which was granted in part and overruled in part. No praecipe
was filed until approximately sixty-eight days after ruling upon
the motion to correct error. The court of appeals stated that be-
cause of Appellate Rule 2(A) requiring a praecipe within thirty
days, the appeal must be dismissed pursuant to the appellee's
motion.

92284 N.E.2d 551 (Ind. Ct. App. 1972).

93Under Appellate Rule 7.2, the appellant must present a sufficient rec-
ord to allow a meaningful review. Johnson v. State, 283 N.E.2d 532 (Ind.

1972) ; Burns v. State, 255 Ind. 1, 260 N.E.2d 559 (1970). If a transcript is
unavailable, the proper procedure is to obtain a factual statement of the evi-

dence pursuant to Appellate Rule 7(A)(3) (c). Quinn v. State, 281 N.E.2d
478 (Ind. 1972). If these procedures are not followed and appellant chal-

lenges his conviction on sufficiency of the evidence, the appeal must be
dismissed. When no evidence is placed on the record, no question is pre-
sented on appeal. Calvert v. State, 251 Ind. 119, 239 N.E.2d 697 (1968)

;

Short v. State, 234 Ind. 17, 122 N.E.2d 82 (1954) ; Messersmith v. State, 217

Ind. 132, 26 N.E.2d 908 (1940).

94290 N.E.2d 454 (Ind. Ct. App. 1972).



48 INDIANA LAW REVIEW [Vol. 7

In the case of In re Estate of Moore,
95

the court of appeals

held that an oral request to the court reporter to prepare a tran-
script did not comply with the requirement of Appellate Rule 2(A)
that an appeal be initiated by filing a praecipe with the clerk of
the trial court. The rule further requires that a copy of a praecipe
shall be served promptly upon the opposing parties. The court
therefore stated that the rule required that a praecipe be a writ-

ten document filed with the clerk. Thus, the case was dismissed,
although all other papers and briefs were timely filed.

The opinion in Softwater Utilities, Inc. v. LeFevre,96 contained
language which should be highlighted for the benefit of all at-
torneys in Indiana:

In the recent case of In re Estate of Moore (1973), Ind.
App., 291 N.E. 2d 566, the trial judge changed the record
to show the praecipe filed several days before it actually
was filed. In this case, the trial judge changed the
record to show that the Motion to Correct Errors was
overruled several days later than it actually was over-
ruled. In both cases, the purpose of changing a record

appears to have been the same, namely, to circumvent

the application of Rule AP. 2(A).'97

In the Softwater Utilities case, the appellants stated that the

notice of the overruling of the motion to correct error was never
received, although that fact was disputed.

The effect of the court's opinion is that regardless of whether
the notice is received by a losing party, pursuant to Trial Rule
72(D) and Appellate Rule 2(A), the right to appeal will be for-
feited unless the praecipe is filed within thirty days after the

ruling on the motion to correct error. Thus, time does not run

from the time when notice of that ruling is received by the party
adversely affected.

In the case of Dzur v. Northern Indiana Public Service Co.,9
*

the supreme court considered Trial Rule 62(D) and Appellate Rule

6(B), in connection with an appeal taken from an interlocutory

order. The appellee filed a motion to dismiss or affirm in which

it stated, in part, that the appeal should be dismissed because

95291 N.E.2d 566 (Ind. Ct. App. 1973).

96293 N.E.2d 788 (Ind. Ct. App. 1973).

97Id. at 790.

98278 N.E.2d 563 (Ind. 1972).



1973] SURVEY OF RECENT DEVELOPMENTS 49

the bond therefor was not filed within the ten days specified by-
statute."

The supreme court held that the bonding requirement of the
statute was not jurisdictional; no appeal bond was necessary under
the rules providing for appeal from interlocutory orders. 100 The
supreme court also stated that the failure to file the bond might
be a basis for dismissing the appeal if some prejudice was
shown to the appellee. However, none was shown, nor did the
appellee contend that it was prejudiced by the late filing of the
bond required by statute.

In Murphy v. Indiana Harbor Belt Railroad, :0} the appel-
lant filed its brief with the clerk of the court of appeals by
depositing it in the mail on May 22, 1972, the last day in the case
for filing. Service of a copy was made upon the appellee's counsel
in his office on the next day, May 23, 1972, by personal delivery.
The question102 was whether the appellant met the requirement
of Appellate Rule 12(B) that copies of all papers filed by any
party shall, at or before the time of filing, be served by a party

or a person acting for him on all the parties of the appeal.

It was obvious that the rule was not literally complied with
and thus the court faced the question whether to dismiss the appeal.

The court of appeals stated that it saw no reason for an automatic
dismissal for the failure of a party to serve the opposing counsel

at or before the time of filing. The court held that it is within the
discretion of that court to effect a dismissal if the conditions of

the case so dictated; here, such was not the case. 103 The court
stated that the only rule which mandates dismissal once jurisdic-

tion is conferred in an appellate court is Appellate Rule 8.1(A).
104

99Ind. Code §32-11-1-5 (1971).

100Federal rule 73(d), upon which Trial Rule 62(D)(2) is based, has
been similarly interpreted. W.H. Lailer Co. v. C.E. Jackson Co., 75 F. Supp.
827 (D. Mass. 1948).

101 284 N.E.2d 84 (Ind. Ct. App. 1972).

102There was no issue as to the timeliness of the filing of appellant's
brief since it was clearly filed within the requisite period.

103The court warned, however, that this opinion should not be interpreted
as an invitation for appellate counsel to abuse the rules and inferred that a
future court retains the power to dismiss for bad faith abuse of the rules.
284 N.E.2d at 87.

104Appellate Rule 8.1(A) directs the clerk to enter an order dismissing
the appeal if appellant fails to file his brief within thirty days after filing

the record.



50 INDIANA LAW REVIEW [Vol. 7

In the case of Anthrop v. Tippecanoe School Corp.? 05 the
supreme court reaffirmed its opinion in Richards v. Crown Point
Community School Corp.? 06 in which it pointed out the bases
for the appeal of interlocutory orders, as found in Trial Rule
72 and Appellate Rule 4(B). The court stated that in order to
take an interlocutory appeal, the entry or order appealed must fit
under the penumbra of an appealable interlocutory decree as
established in the statute.

The court stated in this particular case that there was no
interlocutory appeal available, because the appellants attempted

to effect an appeal of a trial court entry which was made at the
appellants' request upon a "Motion To Determine Aggregate Award
of Appraisers" in a condemnation proceeding. The supreme court
stated that the trial court's particular entry did not fall within

the categories of interlocutory appealable orders found in the sta-

tutory provision. In short, it said that the trial court's entry was
nothing more than an interpretation of the report of the ap-
praisers in the case. Hence it was not appealable as either a final

or an interlocutory order.

Lashley v. Centerville-Abington Community Schools™7 pre-
sented an appeal from an interlocutory-type order in which no

motion to correct error was filed pursuant to Trial Rule 59(G).
The order appealed from was one which overruled the appellant's

objections to the appellee's complaint for the condemnation of real

estate for school purposes. The argument was made on appeal that
appellate jurisdiction could be invoked by an assignment of error

in the court of appeals. The record of proceeding in the case was

filed on November 1, 1972, and the appellant attempted to file

an assignment of error in January 1973.

The court of appeals dismissed the appeal, but in doing so

appeared to revive the old assignment of error practice as a juris-

dictional prerequisite to an interlocutory appeal. The court said

l05277 N.E.2d 169 (Ind. 1972).

106269 N.E.2d 5 (Ind. 1971). Appellate Rule 4(B) provides for appeal

in the following cases: (1) for payment of money or to compel the execution

of any instrument of writing, or the delivery or assignment of any securities,

evidence of debt documents or things in action, (2) for the delivery of the

possession of real property or the sale thereof, (3) granting, or refusing to

grant, or dissolving or overruling motions to dissolve preliminary injunctions,

or the appointment of receivers, and (4) orders or judgments upon writs of

habeas corpus not otherwise authorized to be taken directly to the supreme

court.

107293 N.E.2d 519 (Ind. Ct. App. 1973).



1973] SURVEY OF RECENT DEVELOPMENTS 51

that the timely filing of the record and the assignment of error has
long been held to be a jurisdictional act and that without the
assignment of error the appellant has not invoked the jurisdiction
of the court on appeal. The holding would appear to be inconsistent
with Appellate Rule 3(A). 10S

In the case of Burcham v. SingerJ
09

the court of appeals re-

stated a principle known as the "law of the case," which requires
that the decision of the court of appeals rendered upon a given
state of facts become the law of the case applicable to such state
of facts. The court said that upon a new trial, if new evidence
were introduced and new facts presented, then there would be a
different case and the trial court would not be conclusively bound
by the previous decision. However, if the cause is submitted for
retrial upon the same facts upon which the decision was originally
rendered, then the decision of the appellate court remains the law

of the case and the trial court and an appellate court upon a
subsequent appeal would be bound thereby. The principle was ap-
licable in this case because after the case had once been before
the court of appeals and remanded, no new facts or evidence were
presented to the trial court. The only evidence was the evidence
and pleadings filed and introduced in the original trial, as well as

the decision of the court of appeals interpreting that evidence and

pleadings in the former trial.

In Alderson v. Alderson," the court gave notice by example

of the significance of Appellate Rule 11(B)(2) (d), which provides
that "error" which may serve as a basis for transfer from the
court of appeals to the supreme court may include "that the deci-
sion of the court of appeals correctly followed ruling precedent of

the supreme court, but that such ruling precedent is erroneous

or is in need of clarification or modification . . . ,"
ni The court

overruled the doctrine of indivisibility in divorce appeals, and in

so doing pointed out that the court of appeals had followed ruling

precedent and was not in contravention thereof. However, the

court held, for reasons stated in the opinion, that the petition to

transfer would be granted "pursuant to this Court's inherent

108Appellate Rule 3(B) specifically provides that the appellate court has

jurisdiction on the date the record of proceedings is filed with the clerk of

the supreme and appellate courts. See generally State v. Bridenhager, 276

N.E.2d 843, 844 (Ind. 1972).

109277 N.E.2d 814 (Ind. Ct. App. 1972).

no281 N.E.2d 82 (Ind. 1972).

11 'Ind. R. App. P. 11(B) (2) (d).



52 INDIANA LAW REVIEW [Vol. 7

authority to change any ruling precedent once the appeal has
been terminated in the Appellate Court." 112 The court then cited
Appellate Rule 11(B) (2) (d), which became effective January 1,
1972.

The meaning of the rule, and the case, is clear. It is that the
supreme court by rule, and case law, has established an appellate
procedure by which it may review and redetermine precedents
in Indiana, in cases which do not—in the court of appeals—con-
flict with former cases or precedents. Hence, the attorney may
seek review in the supreme court on transfer of a case which
adheres to precedent and which petitioner argues should be over-
turned or changed.

In the case of Weldon v. State," 3 the supreme court held that
an order denying a motion to intervene was a final judgment from
which an appeal would lie. The sustaining of a motion to strike a
petition of intervention would also be a final judgment. The
court stated that if a motion to intervene were granted, the
controversy would not have ended and no appeal would lie at
that point. It should be noted that after the trial court overruled

the motion to intervene, the appellants filed a motion to correct
errors prior to the appeal—a procedure which is required and to
which the court gave its tacit approval.

In Thompson v. Thompson" 4 the supreme court held that
pursuant to Indiana Code section 33-1-9-2 115 the trial courts of
the State of Indiana are empowered to waive the cost of publishing
summonses in divorce cases and that the refusal to do so was, on
the facts of the cases before it, error. In these cases, the plaintiffs

filed actions for divorce, and in each a petition was presented to
the trial court that the actions be prosecuted as a poor person

and thus that the filing fees, including the cost of publishing

summons, be waived. The trial court determined that it had no
authority to waive the cost of publication.

112281 N.E.2d at 83. See generally Troue v. Marker, 253 Ind. 284, 252

N.E.2d 800 (1969), which held that the supreme court of the state has the
inherent constitutional duty to act as the final authority as to the law in
the state.

n3279 N.E.2d 554 (Ind. 1972).

1M286 N.E.2d 657 (Ind. 1972).

115Ind. Code § 33-1-9-2 (1971) provides that any person entitled to insti-
tute a civil action may file a written statement under oath that, due to his
poverty, he is unable to pay court costs or give security and seek waiver of
such cost security.



1973] SURVEY OF RECENT DEVELOPMENTS 53

On appeal, in addition to holding that the cost of publication
could be waived, 116 the court held that the action of the trial court

—the entry of orders refusing to waive costs of publishing sum-
mons—was a "final order" or judgment, in the sense that all of the
issues were disposed of in the trial court. It was such an order
that it was appealable as a final order or judgment; hence, no
extraordinary writ would lie.

In Indiana Alcoholic Beverage Commission v. Progressive En-

terprises, Inc." 7 a question was raised whether the order appealed

from was in law appealable to the supreme court. The appellee

challenged the court's jurisdiction, contending the case an at-

tempted appeal from a temporary restraining order which was

not appealable. The court pointed out, however, that a second

order was entered by the trial court which was, even though

entitled a temporary restraining order, in fact a preliminary in-

junction. The court stated that it is the substance of the order

which controls, not its caption, and that an order which is entered

after notice and after an evidentiary hearing, as in the instant

case, is in fact a preliminary injunction from which an appeal

will lie. Accordingly, the court sustained its jurisdiction in that

particular question.

In the case of Johnson v. Jackson" 6 the court of appeals

considered the question of whether the statutory provision found in

Indiana Code section 34-2-7-1 provides for a final order. That

provision states that in all receiverships, the receiver, within such

time as may be fixed by an order of the court, shall file with the
court an account in final settlement.

In this case the receiver filed his account of all charges and

credits with the court on April 15, 1970. The trial court entered

an order dated June 4, 1971, which complied with the statute,

and the question arose as to whether the June 4th order was a

final order. The court of appeals held that it was not a final
order in that it did not dispose of the proceeding and that pursuant

to statute, a creditor or other interested party could file an objec-

tion or exception to the account or report. The final accounting

,16The trial court found as a fact that appellants could not pay the costs.

n7286 N.E.2d 836 (Ind. 1972).

1 1 8284 N.E.2d 530 (Ind. Ct. App. 1972).



54 INDIANA LAW REVIEW [Vol. 7

was not filed under October 2, 1971 ; hence the interim order was
not a final order. 119

The case of City of Hammond v. Board of Zoning Appeals,'™
set out several important principles which are operative when a
trial court sustains a motion to dismiss on the ground that there
was no jurisdiction in the court to entertain the action. The City-
filed an action against the Zoning Board, and pursuant to a Trial
Rule 12(B) (1) motion, the trial court dismissed the action. Then
the City filed a motion to reconsider, which was not passed upon,
because the trial court granted leave to file an amended complaint.
Thereafter, the Zoning Board renewed the motion to dismiss,
which was sustained, and the former order of dismissal was rein-
stated. It was dated March 25, 1971 and a motion to correct errors
was filed on June 28, 1971.

On appeal the court held that the first motion to dismiss
under Rule 12(B) (1) was a final judgment and that a motion to
reconsider will not toll the time requirement for filing a motion
to correct error under Trial Rule 59 because Trial Rule 53.3 (then
Trial Rule 53.2(B)) states that a motion to reconsider shall not
extend the time for any further required or permitted action.
The court also held that, pursuant to Trial Rule 15(A), a party
can move to amend a dismissed complaint within sixty days from
granting the 12(B) (1) judgment. If the leave to file an amended
complaint is granted, that will toll the sixty day period under
Trial Rule 59.

The factual sequence should again be noted : the second motion
to dismiss was granted on June 24, 1971, but the trial court's

order was to reinstate the first dismissal, entered on March 25,
1971. The motion to correct errors was filed on June 28, 1971,

and under this case it was timely because the second dismissal

came after the complaint was amended.

119Citing State v. Burton, 112 Ind. App. 268, 44 N.E.2d 506 (1942), the
court stated:

A final judgment is one that disposes of a cause both as to the sub-
ject matter and the parties so far as the court has the power to dis-

pose of it. An interlocutory order is one which does not so dispose
of the cause but reserves or leaves some question or direction for

future determination.

284 N.E.2d at 533.

120284 N.E.2d 119 (Ind. Ct. App. 1972).



1973] SURVEY OF RECENT DEVELOPMENTS 55

Henceforth, the trial court practice should be to enter a

second dismissal as of the date of its actual entry and not to
"revive" the former order of dismissal. The reason is essentially
one of court record keeping and timeliness on appeal, that is, the
party's concern is a timely motion under Trial Rule 59. It may in
fact have been timely, but the record may not show that it was,
if the trial court does no more than "reinstate" the former dis-
missal. Hence, the trial court should enter its order of dismissal

on the amended complaint anew.

III. Contracts and Commercial Law*

A. Scope of the Uniform Commercial Code

In Helvey v. Wabash County REMC ] the Indiana Court of
Appeals determined that electricity was "goods" within the mean-
ing of Indiana Code section 26-1-2-105.2 Plaintiff brought suit

for breach of express and implied warranties and alleged certain
damages caused to his household appliances by defendant's fur-
nishing electricity of voltage higher than warranted. The suit
was filed four years and two months after the incident in question
occurred. The trial court entered summary judgment for defend-
ant on the ground that Indiana Code section 26-1-2-725, a four-

year statute of limitations, applied and barred the suit. On appeal,
plaintiff argued that furnishing electricity was not a transaction
in goods, but a furnishing of a service, and that the six-year

statute of limitations for accounts and oral contracts3 should

apply.

*Judith T. Kirtland.

] 278 N.E.2d 608 (Ind. Ct. App. 1972).

2 This section provides in part:

(1) "Goods" means all things (including specially manufactured
goods) which are movable at the time of identification to the contract

for sale other than the money in which the price is to be paid, invest-
ment securities . . . and things in action. . . .

(2) Goods must be both existing and identified before any in-
terest in them can pass. . . .

3 Ind. Code §34-1-2-1 (1971).