Sekerez v. JASPER COUNTY FARM BUREAU COOP. ASS'N

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458 N.E.2d 286 (1984)

Zarko SEKEREZ, d/b/a Rensselaer Legal Clinic, Appellant (Defendant below), v. JASPER COUNTY FARM BUREAU COOPERATIVE ASSOCIATION, Inc., Appellee (Plaintiff below).

No. 3-883A248.

Court of Appeals of Indiana, Third District.

January 5, 1984.

Mark R. Harris, Merrillville, for appellant.

HOFFMAN, Presiding Judge.

Appellant Zarko Sekerez appeals from an entry of default judgment.

The only facts relevant to this appeal are as follows: On February 10, 1983, the Jasper Superior Court entered judgment of default against Sekerez. On April 4, 1983, Sekerez' attorney filed his motion to correct errors along with a motion for relief from judgment under Ind.Rules of Procedure, Trial Rule 60(B). The motion to correct errors was duly denied on May 6, 1983. On May 18, 1983, counsel filed a praecipe for withdrawal of submissions under Trial Rule 53.1(B), due to the court's failure to timely rule on the motion for relief from judgment. At the time Sekerez' brief was filed, the Supreme Court had not yet appointed a special judge.

Due to the holding of the Supreme Court of Indiana in Siebert Oxidermo, Inc. v. Shields, (1983) Ind., 446 N.E.2d 332, Sekerez presents no issue for this Court to review. The Siebert Court specifically held that:

"the proper procedure in the Indiana Rules of Trial Procedure for setting aside an entry of default or grant of default judgment thereon is to first file a Rule 60(B) motion to have the default or default judgment set aside. Upon ruling on that motion by the trial court the aggrieved party may then file a Rule 59 Motion to Correct Error alleging error in the trial court's ruling on the previously filed Rule 60(B) motion. Appeal may then be taken from the court's ruling on the Motion to Correct Error." (Emphasis added.) 446 N.E.2d at 337.

Sekerez' motion to correct errors was prematurely filed and is without effect. Without a ruling on the 60(B) motion, he is unable to perfect an appeal, since no error is thereby preserved.

Appeal dismissed.

GARRARD and STATON, JJ., concur.