State Bd. of Tax Com'rs v. Associated Auto & Truck Rental, Inc., 1270A254

• Decision Date: 21 April 1971
• Docket Number: No. 1270A254,1270A254
• Citation: 148 Ind.App. 611,268 N.E.2d 626,25 Ind.Dec. 333
• Court: Indiana Appellate Court
• Parties: STATE BOARD OF TAX COMMISSIONERS, Appellant, v. ASSOCIATED AUTO & TRUCK RENTAL, INC., Appellees.

Page 626

268 N.E.2d 626

148 Ind.App. 611

STATE BOARD OF TAX COMMISSIONERS, Appellant, v. ASSOCIATED AUTO & TRUCK RENTAL, INC., Appellees.

No. 1270A254.

Appellate Court of Indiana, En Banc.

April 21, 1971.

Theodore L. Sendak, Atty. Gen., Scott Tower Miller, Walter E. Bravard, Jr., Joseph S. Van Bokkelen, Deputy Attys. Gen., Indianapolis, for appellant.

Leo Kriner, Kriner & Harman, D. Reed Scism, Roberts & Ryder, Indianapolis, Acher & Gholston, Franklin, for appellee.

OPINION

SHARP, Judge.

This court has made an unfortunate mistake in its interpretation of Rule A.P. 7.2(A)(1)(a) in the case of Thonert v. Daenell, Ind.App., 263 N.E.2d 749 (1970).

Rule A.P. 7.2(A)(1)(a) reads as follows:

'In all appeals from a final judgment, a certified copy of the motion to correct errors filed with the trial court shall constitute for all purposes the assignment of errors. No assignment of error other than the motion to correct errors shall be included in the record.'

In regard to this rule this court stated in Thonert at 263 N.E.2d at page 750:

'We further note that the transcript fails to comply with the provisions of Appellate Rule 7.2 in that the motion to correct errors is not separately certified, and it does not appear at the beginning of the transcript. While we do not read Appellate Rule 7.2(A)(2) to require each paper filed in the trial court to be separately certified, we do read Appellate Rule 7.2(A)(1) and (A) (1)(a) to require that the motion to correct errors must be separately certified. The balance of the record may be certified by one certificate of the clerk at the end of the record, as was done under our former practice. While the language of the rule is not clear as to its requirements, we believe this interpretation is reasonable and workable.' (Emphasis added) 263 N.E.2d 750.

We, thus, judicially added the word 'separately' as a requirement to the above rule so as to in effect make it read as follows:

'* * * (separately) certified copy of the Motion to Correct Errors filed with the trial court shall constitute for all purposes the Assignment of Errors. * * *'

No good reason is stated in our Thonert opinion for requiring this additional and burdensome technical certification. If, as we said in Thonert, A.P. 7.2(A) (1)(a) is not clear, then we would not interpret such rule to require an added, unneeded and unwarranted technical burden. (We must emphasize that we are not here overruling the Thonert case as to its result. There are several...