Cohan v. Youngstown Sheet & Tube Co. , 148 Ind. App. 242 ( 1970 )

Carson, J.

This is an appeal from the Lake Circuit Court wherein the court sustained appellee’s motion for summary judgment.

The record discloses that on the 2nd day of July, 1968, the court overruled the motion for summary judgment following which the appellee filed a motion for rehearing of the motion for summary judgment and, on the 13th day of March, 1969, the court sustained the motion for summary judgment.

Thereafter, the appellants filed praecipe for transcript, and in assignment number 2 of appellants’ assignment of errors the following ground was set out:

2. The Court erred in failing to make an affirmative finding that there was no genuine issue as to any material fact undetermined between the parties.

In Harris v. Young Women’s Christian Association (1968), 250 Ind. 491, at 500, 237 N. E. 2d 242, at 247, our Supreme Court said:

“The case at bar points up all of the compelling reasons for the Trial Judge specifying in an entry of summary judgment the grounds upon which such judgment is entered. Certainly there are all of the persuasive reasons for specifying the grounds of summary judgment that we would find on the ruling for a motion for new trial.

“In the case before us this Court or the Appellate Court is entitled to have the court below set out the reason for the granting of the motion for summary j udgment.

“This cause is reversed with instructions to the court to reconsider the motion for summary judgment in the light of this opinion and to rule on said motion for summary judgment consistent with this opinion, and to state with particularity the reasons for granting any summary judgment. Prior opinions of this Court which are inconsistent with the holdings stated herein, are hereby overruled.”

Harris was followed by this court in Singh v. Interstate Finance of Indiana (1969), 144 Ind. App. 444, 246 N. E. 2d 776, 17 Ind. Dec. 323.

In view of this error, it is not necessary for us to consider the other errors assigned by appellants.'

This cause is, therefore, remanded with instructions to the court to reconsider the motion for summary judgment in light of this opinion and the opinion of our Supreme Court in Harris v. Young Women’s Christian Association, supra, to rule on said motion for summary judgment consistent with this opinion, and to state with particularity the reasons for granting any summary judgment. We shall retain jurisdiction of this appeal for determination upon the merit's at such time as the supporting statement of the trial judge is certified to this court. Such procedure is countenanced and promoted by Rule AP. 15 (M) (6), Indiana Rules of Procedure, and prior to the effective date of such rule we took analogous action in State Bd. of Tax Com'rs. v. Fort Wayne Sport Club, Inc. (1969), 145 Ind. App. 1, 248 N. E. 2d 372, 18 Ind. Dec. 27.

Cause remanded with instructions.

Lowdermilk, C.J., and Sullivan, J., concur; Lybrook, J., not participating.

NOTE. — Reported in 264 N. E. 2d 628.