364 N.E.2d 1174 (Ind. 1977), 777S524, Dahlberg v. Ogle

Docket Nº777S524.
Citation364 N.E.2d 1174, 266 Ind. 524
Party NameDonna DAHLBERG, as Administratrix of the Estate of Leslie R. Dahlberg, Jr., Deceased, Appellant, v. Dr. Robert OGLE and Dr. Francisco D. Deogracias, Appellees.
Case DateJuly 20, 1977
CourtSupreme Court of Indiana

Page 1174

364 N.E.2d 1174 (Ind. 1977)

266 Ind. 524

Donna DAHLBERG, as Administratrix of the Estate of Leslie R.

Dahlberg, Jr., Deceased, Appellant,

v.

Dr. Robert OGLE and Dr. Francisco D. Deogracias, Appellees.

No. 777S524.

Supreme Court of Indiana.

July 20, 1977

[266 Ind. 525] Morris L. Klapper, Indianapolis, for appellant.

Richard J. Darko, Jon D. Krahulik, Indianapolis, for appellee Ogle.

Geoffrey Segar, G. Daniel Kelley, Jr., Indianapolis, for appellee Deogracias.

PER CURIAM.

This case arose in the trial court as an action against two physicians whose alleged negligence resulted ultimately in the death of plaintiff's decedent. The case concluded with a judgment for both defendants and plaintiff appealed. The Second District Court of Appeals dismissed upon motions of the appellee physicians because the transcript of the evidence was not shown by the

Page 1175

record of the proceedings to have been properly filed with the clerk of the trial court and thereby made part of the record as required by Ind.R.Ap.P. 7.2(A)(4), and because of the failure of appellant's brief to conform to Ind.R.Ap.P. 8.3(A)(7) dealing with the requirement that instructions and objections thereto and specific statements of errors from the motion to correct errors be set out.

The record of proceedings before us contains a transcript of the evidence properly authenticated by the certificate of the court reporter and the judge, and the entire record of proceedings concludes with the final certificate of the clerk. The transcript of the evidence bears no file stamp; the final clerk's certificate does not state that the transcript of evidence was filed; and there is no order book entry which proclaims that the transcript was filed with the clerk. Judge Lienberger's certificate does contain the following statement:

"And this transcript is now, here, on this, the 3rd day of September, 1975, settled, approved, signed and ordered to be and constitute a part of the record of said cause, and the [266 Ind. 526] Clerk of said court is hereby ordered to file the same as a part of the record in said above entitled cause, and the same is now filed with said Clerk and made a part of the record herein." (Emphasis added.)

The Court of Appeals dismissed the case in part because it could find no adequate evidence of filing, and in so determining, it rejected appellant's response to the motion to...

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13 practice notes
  • 374 N.E.2d 1159 (Ind.App. 2 Dist. 1978), 2-675A145, Lugar v. State ex rel. Lee
    • United States
    • Indiana Court of Appeals of Indiana
    • April 10, 1978
    ...reader is able to readily identify the corresponding error assigned in the Motion to Correct Errors. In Dahlberg v. Ogle (1977), Ind., 364 N.E.2d 1174, under similar circumstances, our Supreme Court refused to dismiss an appeal or hold the issues waived. As in that case, the Appellants' bri......
  • 377 N.E.2d 877 (Ind.App. 2 Dist. 1978), 2-476A128, City of Indianapolis v. Ingram
    • United States
    • Indiana Court of Appeals of Indiana
    • June 15, 1978
    ...(c) There are no marginal notations in the transcript of the Merit Board proceeding. Our Supreme Court in Dahlberg v. Ogle (1977), Ind., 364 N.E.2d 1174, disposed of item (a): For the purposes of evidencing the act of filing with the clerk, recitals in the judge's certificate should be rece......
  • 380 N.E.2d 1271 (Ind.App. 3 Dist. 1978), 3-1176A263, Ernst v. Sparacino
    • United States
    • Indiana Court of Appeals of Indiana
    • September 28, 1978
    ...without undue hardship or extraordinary expense, . . . dismissal is not warranted on that basis." Dahlberg v. Ogle (1977), Ind., 364 N.E.2d 1174, 1175. Though Dahlberg addressed itself to the dismissal of an appeal, the same rationale is applicable to a waiver analysis. In addition, th......
  • 543 N.E.2d 676 (Ind.App. 1 Dist. 1989), 61A01-8811-CV-366, State Farm Fire & Cas. Ins. Co. v. Graham
    • United States
    • Indiana Court of Appeals of Indiana
    • September 20, 1989
    ...issue. Therefore, we find no grounds for waiving the issue and will proceed to consider the issue on the merits. Dahlberg v. Ogle (1977), 266 Ind. 524, 364 N.E.2d 1174, 1175. [2] This assumption is a consequence of the parties' pre-appeal conference. [3] That this court is only now directly......
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13 cases
  • 374 N.E.2d 1159 (Ind.App. 2 Dist. 1978), 2-675A145, Lugar v. State ex rel. Lee
    • United States
    • Indiana Court of Appeals of Indiana
    • April 10, 1978
    ...reader is able to readily identify the corresponding error assigned in the Motion to Correct Errors. In Dahlberg v. Ogle (1977), Ind., 364 N.E.2d 1174, under similar circumstances, our Supreme Court refused to dismiss an appeal or hold the issues waived. As in that case, the Appellants' bri......
  • 377 N.E.2d 877 (Ind.App. 2 Dist. 1978), 2-476A128, City of Indianapolis v. Ingram
    • United States
    • Indiana Court of Appeals of Indiana
    • June 15, 1978
    ...(c) There are no marginal notations in the transcript of the Merit Board proceeding. Our Supreme Court in Dahlberg v. Ogle (1977), Ind., 364 N.E.2d 1174, disposed of item (a): For the purposes of evidencing the act of filing with the clerk, recitals in the judge's certificate should be rece......
  • 380 N.E.2d 1271 (Ind.App. 3 Dist. 1978), 3-1176A263, Ernst v. Sparacino
    • United States
    • Indiana Court of Appeals of Indiana
    • September 28, 1978
    ...without undue hardship or extraordinary expense, . . . dismissal is not warranted on that basis." Dahlberg v. Ogle (1977), Ind., 364 N.E.2d 1174, 1175. Though Dahlberg addressed itself to the dismissal of an appeal, the same rationale is applicable to a waiver analysis. In addition, th......
  • 543 N.E.2d 676 (Ind.App. 1 Dist. 1989), 61A01-8811-CV-366, State Farm Fire & Cas. Ins. Co. v. Graham
    • United States
    • Indiana Court of Appeals of Indiana
    • September 20, 1989
    ...issue. Therefore, we find no grounds for waiving the issue and will proceed to consider the issue on the merits. Dahlberg v. Ogle (1977), 266 Ind. 524, 364 N.E.2d 1174, 1175. [2] This assumption is a consequence of the parties' pre-appeal conference. [3] That this court is only now directly......
  • Request a trial to view additional results