Raisor v. Kelly

275 N.E.2d 542 (1971)

Herbert RAISOR, Harriett Raisor, Plaintiffs,
v.
Herbert KELLY, Corrilla Kelly, Defendants.

No. 1271 S 349.

Supreme Court of Indiana.

December 3, 1971.

Douglas Denmure, Denmure & Denmure, Aurora, for plaintiffs.

Edward J. Utz, Charles W. Lehner, Lawrenceburg, for defendants.

PRENTICE, Judge.

This cause is before us upon notice from the clerk of the Ohio Circuit Court of the withdrawal of submission under Trial Rule 53.2(A), together with a transcript of the proceedings ordered up from said clerk, which notice and transcript are now filed herein.

Petitioners were plaintiffs below. A motion to correct errors was filed by the defendant on March 18, 1971. On May 6th it was set for oral arguments on June 2nd and was argued on that date. On June 25, in open court, and with counsel present the court granted the motion to correct errors and ordered a new trial. No formal entry was made at this time. On September 4th, plaintiff filed a praecipe for a transcript with the clerk of the trial court and also filed with the clerk of the Supreme and Appellate Courts a petition for extension of time in which to file the appeal, which extension was granted to and including December 4, 1971. On October 30th, plaintiff filed praecipe with the clerk of the trial court for a notice of withdrawal of submission, and on November 1st, the clerk gave notice thereof to this Court and to the trial judge. On November 3rd, the trial judge entered the formal order granting the motion to correct errors and ordering a new trial, back dating the same to June 25th, the date that the ruling thereon was announced.

In view of Trial Rules 77(A), (E) and 72(D), we do not condone the delay by the trial judge in effecting the order book entry of his ruling upon the motion to correct errors. Minutes of all rulings should be made immediately and complete order book entries should be made and signed as soon as possible thereafter. However, it is clear as evidenced by the plaintiffs' acts of September 4, 1971, that the trial judge had theretofore announced his ruling upon the motion to correct errors. Therefore, no issue was under submission when their praecipe was filed under Trial Rule 53.2(A). Accordingly, the withdrawal of submission is hereby set aside, and the jurisdiction of the trial judge is continued. Jolly v. Modisett, Ind., 275 N.E.2d 780 (1971).

ARTERBURN, C.J., and GIVAN and HUNTER, JJ., concur.

DeBRULER, J., dissents without opinion.