Miller v. Mansfield

Hoffman, J.

This is an appeal by defendants-appellants Robert J. Miller, John Sasser and Sims Motor Transport, Inc., a/k/a Steel and Stone Transport Corp. (Miller) from the granting of certain portions of a motion to correct errors filed by James D. and Yvonne Mansfield.

On August 18, 1970, James Mansfield filed a complaint against Miller seeking recovery for personal injuries sustained in a collision between an automobile driven by Mansfield and a truck driven by Robert J. Miller. On the same date, Yvonne Mansfield, James’ wife, filed a complaint against Miller seeking recovery for loss of consortium and for damages to her automobile. Following trial before a jury, a verdict was returned in favor of Miller. The Mansfields thereafter filed a motion to correct errors and on April 16, 1978, such motion was granted in part and overruled in part. A new trial was granted and the verdict of the jury was set aside. The trial court’s ruling on the motion to correct errors, omitting caption and formal parts, reads as follows:

“Comes now the Court and the Court, having heretofore heard argument on Plaintiff’s Motion To Correct Errors and the Court, having examined Defendant’s Response to said Motion, the Court now finds that said Motion to Correct Errors should be overruled as to all allegations of error based upon the evidence introduced at the time of the trial and as to claim of error by reading Defendant’s Instructions Nos. 4 and No. 9. The Court further finds that said Motion should be sustained as to the allegations of admitting into evidence Defendant’s Exhibit No. 7 and as to the allegations in said Motion that the Court refused to give Plaintiff’s Tendered Instruction No. 13. Defendant’s Exhibit No. 7 was a photograph which, at the time it was offered into evidence, had to be corrected by marking off certain portions and instructing the jury to ignore those parts so marked off. It is the opinion of the Court, at this time, that the admission of said Defendant’s Exhibit No. 7 was in fact error which prejudiced the Plaintiff’s right in this trial.

“It is also the opinion of this Court that the failure to give Plaintiff’s Instruction No. 13 constituted reversible error for the following reasons:

“The Defendant’s counsel asked a witness, one Jerry-Gray, a series of questions which implied that Mr. Gray had informed Defendant’s counsel (father and son) that he was interested in money for his testimony. Defendant’s counsel, Mr. Galvin, although present in Court, chose not to testify in view of the fact that to do so would require him to remove himself as counsel for any further proceedings in this cause. Mr. Gray turned out to be the only independent witness with first hand knowledge of the accident involved. The failure of the Court to give Plaintiff’s Instruction No. 13 could well have allowed the jury to have considered Mr. Gray’s testimony in a prejudicial light as, the questions, referred to before, directly attacked the credibility of this witness. Defendant argues that the questions asked were proper Cross Examination but that they failed to constitute impeachment. By Defendant’s own definition of ‘impeachment’ and impeaching questions, the Court now finds that, considering the questions referred to and the answers given, that the grounds for impeachment were, in fact, laid and that failure on the part of defense counsel to (produce) a witness to rebut the implication made, required the Court to instruct the jury to ignore all of that testimony of Mr. Gray. See: United States v. Bohle (C.A. 7, 1971), 445 F.2d 54 at p. 73.

“This Court is of the opinion that the word ‘produce’, as used in that opinion, means to place testimony in the record and not merely the presence of a witness in a courtroom.

“WHEREFORE, it is considered, ordered and adjudged that the Verdict of the jury heretofore entered in this cause, is hereby set aside and this cause is remanded for a new trial.”

From the granting of the Mansfields’ motion to correct errors, Miller has taken this appeal. See: Ind. Rules of Appellate Procedure, Appellate Rule 4 (A).

The sole question which will be considered is whether, following the entry of judgment by the trial court granting, in part, appellees’ motion to correct errors and ordering a new trial, it was necessary that appellants file a motion to correct errors.

In Davis v. Davis (1974), 159 Ind. App. 290, 306 N.E.2d 377, at 380 (transfer denied), this court stated:

“Thus, the Supreme Court has interpreted Rule AP. 4(A) to mean that if a trial court grants or denies a motion to correct errors which is accompanied by a new entry or judgment consisting of additional findings, amendments, or other alterations of the prior judgment, the party aggrieved thereby must file a motion to correct errors addressed to the new entry which has become the final judgment from which appeal is taken. With this interpretation we agree, not only because we are bound to do so, but because it logically stresses the need for specificity of alleged errors in the appeal process. The first sentence of Rule AP. 4(A) referring to appeals ‘from all final judgments’ as well as the second sentence denominating a ruling on a motion to correct errors as a final judgment, is thus given force and effect.” (Footnote omitted.) See: State v. Deprez (1973), 260 Ind. 413, 296 N.E.2d 120; Koziol v. Lake County Plan Commission (1974), 161 Ind. App. 232, 315 N.E.2d 374 (transfer denied); Easley v. Williams (1974), 161 Ind. App. 24, 314 N.E.2d 105; State v. Kushner (1974), 160 Ind. App. 464, 312 N.E.2d 523 (transfer denied); Wyss v. Wyss (1974), 160 Ind. App. 281, 311 N.E.2d 621 (transfer denied).

More recently, in discussing the application of the case of State v. Deprez, supra, to a situation in which a trial court, after granting a motion to correct errors, entered a new and amended judgment vacating its previous judgment, this court in Weber v. Penn-Harris-Madison School Corporation (1974), 162 Ind. App. 28, at 32, 317 N.E.2d 811, at 813, said:

“This Court reads Deprez to mean that if the trial court, in ruling on the motion to correct errors, does anything other than simply granting or denying the motion, that ruling becomes a new judgment to which a new motion to correct errors must be directed. Therefore, any amendment of a judgment creates a new judgment which requires a motion to correct errors.”

In the case at bar, the trial court granted, in part, appellees’ motion to correct errors. Under the provisions of Rule AP. 4(A), supra, such is deemed a final judgment. By operation, it had the effect of vacating the trial court’s previous judgment which was entered on the verdict of the jury. Thus, we must conclude that the entry of judgment granting appellees’ motion to correct errors and ordering a new trial creates a new judgment necessitating a subsequent motion to correct errors.

Appeal dismissed.

Staton, P.J., concurs; Garrard, J., dissents with opinion.