Hudson v. Tyson

¶1DISSENT

¶2I must dissent. The entry of September 9,1976 is interlocutory in nature — not a “final judgment” for purposes of appeal.

¶3Prior to the adoption of the Indiana Rules of Trial Procedure in 1970, it was well established that proceedings supplemental to execution were *387filed as new and independent civil actions and orders rendered in such proceedings constituted final, appealable judgments within the meaning of the appeal statute. Ettinger v. Robbins (1945), 223 Ind. 168, 59 N.E.2d 118; Mitchell v. Godsey (1944), 222 Ind. 527, 53 N.E.2d 150; Hutchinson v. Trauerman (1887), 112 Ind. 21, 13 N.E. 412; Burkett v. Holman (1885), 104 Ind. 6, 3 N.E. 406.

¶4In 1970, however, when the Supreme Court adopted T.R. 69(E), and the procedures described therein, it became apparent that the intent was to modify prior practice1 so that proceedings supplemental to execution became a continuation of the original cause of action. As Judge Lybrook, speaking for the first district of this court, put it in Protective Insurance Co. v. Steuber (1977), 175 Ind.App. 139, 370 N.E.2d 406:

It was not a separate action and therefore the Order against garnishee-defendant Protective Insurance Company was ancillary to the underlying judgment in the original case of Michael E. Steuber v. Orville Wright, Sr., and Red Cab Company, Inc. (which we have reversed). As such, the Order against Protective Insurance Company can be appealed as an interlocutory order to this Court without the necessity of filing a TR. 59 Motion to Correct Errors.

¶5See also Linton v. Linton (1975), 166 Ind.App. 409, 339 N.E.2d 96; Myers v. Hoover (1973), 157 Ind.App. 310, 300 N.E.2d 110. Such proceedings are a means of enforcing the underlying judgment and are ancillary to it. Protective Insurance Co. v. Steuber, supra; Citizens National Bank of Grant County v. Harvey (1976), 167 Ind.App. 582, 339 N.E.2d 604.

¶6Such a conclusion is consistent with the Civil Code Study Commission comments on TR. 69(E), which read in pertinent part:

*388Rule 69(E) contains a substantial revision of the procedures applicable to proceedings supplemental to execution. Its basic tenet is that proceedings supplemental to execution is a continuation of the original cause, is not a new action, and should be allowed to proceed without the technical showing that execution has been commenced or would be unavailing.

¶7Harvey & Townsend, 4 Ind. Practice, 469-70 (1971).

¶8Additional support lies in the procedures of T.R. 69(E) which specifies that proceedings supplemental to execution are initiated by motion under the same cause number in the same court which entered the underlying judgment.2 Further, no additional filing fees are required and the court will take judicial notice of the parties and the underlying judgment.

¶9The ancillary nature of proceedings supplemental to execution under TR. 69(E) is implicit in the language of TR. 59(G) which provides:

(G) Motion to correct error a condition to appeal. In all cases in which a motion to correct errors is the appropriate procedure preliminary to an appeal, such motion shall separately specify as grounds therefor each error relied upon however and whenever arising up to the time of filing such motion. Issues which could be raised upon a motion to correct errors may be considered upon appeal only when included in the motion to correct errors filed with the trial court. A motion to correct errors shall not be required in the case of appeals from interlocutory orders, orders appointing or refusing to appoint a receiver, and from orders in proceedings supplemental to execution, (emphasis supplied)

¶10Consistent with this language is AP. 4(B)(1) which allows an appeal to be taken from interlocutory orders, “For the payment of money . . .”

¶11These rather substantial alterations of the previous practice signify an obvious effort by the Supreme Court to simplify the procedures applicable to proceedings supplemental and to hasten satisfaction of the underlying final judgment. In HARVEY & TOWNSEND, 4 IND. PRACTICE *389464 (1971), Dean Harvey sets forth the rationale underlying the change in procedure:

Rule 69 modernizes the law relating to execution and judicial sales, and streamlines the proceedings supplemental to execution. The philosophy underlying this Rule is based upon the idea that the defendant against whom a judgment has been recovered should promptly pay it, or make arrangements for doing so. If he does not, collection procedures provided by the law should be reasonably swift and free of technical obstructions, so that when judicial remedies are exhausted rehabilitation of both the judgment debtor and the judgment creditor (both of whom may be serious losers) becomes a greater reality. If collection procedures are expedited, both parties have bought time in which to find an economic solution to their problems. Much of the law relating to execution and judicial sales, particularly in the case of land, was developed in an agricultural society when the debtor needed time. This is not so today, and undue delays and technicalities may destroy debtors and creditors as well, (emphasis supplied)

¶12Thus it seems logical to conclude that orders entered pursuant to proceedings supplemental to execution are interlocutory in nature rather than “final” judgments.

¶13The weakness of the majority position is that it focuses on the technical niceties of finality rather than the intent of TR. 69(E) and TR. 59(G) to simplify proceedings supplemental and shorten the appeal time if an appeal is taken from such an ancillary proceeding.

¶14These rules were designed to prevent just such a situation as is now before us. The trial court vacated its stay and ordered payment due on the original judgment on December 20, 1976, and a petition for extension of time to file the record was filed and granted on March 14, 1977 — a lapse of eighty-four days.3

¶15It is a glorious thing to avoid unnecessary delay in the appellate process. And the Supreme Court’s rules have accomplished that end . . . a result which should not be thwarted.

¶16Note — Reported at 383 N.E.2d 66.