Barkey v. Schermerhorn, 368A29

• Decision Date: 23 October 1968
• Docket Number: No. 2,No. 368A29,368A29,2
• Citation: 143 Ind.App. 440,241 N.E.2d 82
• Parties: Ralph D. BARKEY, Caroline L. Barkey, Donald H. Aumsbaugh, George M. Skinner and Virginia P. Skinner, Appellants, v. John SCHERMERHORN, James Stump and Robert Clealand, as the Board of Commissioners of Noble County, Indiana, Appellees
• Court: Indiana Appellate Court

Page 82

241 N.E.2d 82

143 Ind.App. 440

Ralph D. BARKEY, Caroline L. Barkey, Donald H. Aumsbaugh George M. Skinner and Virginia P. Skinner, Appellants, v. John SCHERMERHORN, James Stump and Robert Clealand, as the Board of Commissioners of Noble County, Indiana, Appellees.

No. 368A29.

Appellate Court of Indiana, Division No. 2.

Oct. 23, 1968.

Edgar A. Grimm, Grimm & Grimm, Kendallville, Howard E. Petersen, LaGrange, for appellants.

Kenneth A. King, Kendallville, and Arch N. Bobbitt, Indianapolis, for appellees; Ruckelshaus, Bobbitt, & O'Connor, Indianapolis, of counsel.

ON PETITION FOR REINSTATEMENT OF APPEAL AND FOR REHEARING

BIERLY, Judge.

The original appeal in this cause was dismissed by this court on September 23, 1968. See (1968) Ind.App., 240 N.E.2d 93.

On October 8, 1968, the appellants filed their Petition for Reinstatement of Appeal and for Rehearing. Said petition contains a lengthy argument, discussion and citation to authorities and to the respective briefs of the parties. On October 14, 1968, appellees filed 'Appellees' Answer to Appellants' Petition for Reinstatement of Appeal and for Rehearing'. While we do not consider the pertition to be sufficient to warrant our approval, yet we shall comment briefly on its form.

Rule 2--22 of our Supreme Court reads:

'* * * REHEARINGS. Application for a rehearing of any cause shall be made by petition, separate from the briefs, signed by counsel, and filed with the clerk wsithin twenty (20) days from rendition of the decision, stating concisely the reasons why the decision is thought to be erroneous. Such application may, if desired, be supported by briefs, but such briefs will not be received after the time allowed for filing the petition. Parties opposing the rehearing may file briefs within ten (10) days after the filing of the petition. Adopted April 17 1940. Effective September 2, 1940. Amended June 17, 1943. Effective September 6, 1943.' (Emphasis supplied)

This court has held repeatedly that the incorporation of a supporting brief in a petition for rehearing is a sufficient ground for dismissing the petition for failure to conform with Rule 2--22, supra.

In McClaim's Estate v. McClain (1962), 133 Ind.App. 645, 183 N.E.2d 842, 184 N.E.2d i81, Judge Ax, in deciding this question, quoted an earlier opinion written by Judge Achor of the Supreme Court of Indiana, in Automobile Underwriters, Inc. v. Smith (1961), 241 Ind. 302, 171 N.E.2d 823, wherein he said:

"Under the above rule, alleged errors in the opinion, which are assigned as cause or grounds...