McIlwain v. Simmons

SULLIVAN, Judge,

dissenting.

I dissent. The Clerk of the Grant Circuit Court admitted that Mellwain was not advised of the entry of summary judgment against him. The facts in this case demonstrate even more dramatically than Brendonwood Common v. Kahlenbeck (2d Dist. 1981) Ind. App., 416 N.E.2d 1335, the unconscionable burden placed upon counsel. The holding of the majority today requires a practitioner having litigation pending in many counties to monitor the records of virtually every court in every county every day. The majority may not here utilize the erroneous assumption relied upon in Bren-donwood Common, with respect to the accessibility of records to counsel in their home county. For the reasons set forth in my dissent in Brendonwood Common v. Kahlenbeck, supra, 416 N.E.2d 1335 at 1337 and consistent with the holdings of the Third District in All State Insurance Co. v. Neumann (3d Dist.1982) Ind.App., 435 N.E.2d 591 and the First District in First National Bank & Trust Co. of Crawfordsville v. Coling (1st Dist.1981) Ind.App., 419 N,.E.2d 1326, I would grant Mellwain's motion for leave to file a belated Motion to Correct Error.