Browne v. Blood, 30182

• Citation: 199 N.E.2d 712,245 Ind. 447
• Decision Date: 01 July 1964
• Docket Number: No. 30182,30182
• Parties: Margaret G. BROWNE et al., Appellants, v. Stephen A. BLOOD, Jr., et al., Appellees.
• Court: Supreme Court of Indiana

Page 712

199 N.E.2d 712

245 Ind. 447

Margaret G. BROWNE et al., Appellants, v. Stephen A. BLOOD, Jr., et al., Appellees.

No. 30182.

Supreme Court of Indiana.

July 1, 1964.

Welborn & Miller, Evansville, Gerald Hall, Princeton, Carl M. Gray, Petersburg Bamberger, Foreman, Oswald & Hahn, William T. Fitzgerald, Kahn, Dees, Donovan & Hahn, Evansville, for appellants.

McDonald & McDonald, Princeton, Emison & Emison, Vincennes, Maurice B. Miller, Princeton, Steve Bach, Mt. Vernon, Warren W. Barnett, Princeton, Alfred A. Kiltz, Mt. Vernon, for appellees.

ACHOR, Chief Justice.

Appellants, in support of their petition for rehearing, assert that the opinion as heretofore written is in error in two particulars.

First, although it appears from the record that there was a defect of parties in this appeal, in that, as stated in the opinion, 'appellants failed to name two of the petitioners in the original proceedings or to substitute any parties in their stead,' appellants seek to explain away this fact by now filing a supplemental 'affidavit of the parties.'

As noted in the opinion, there were other defects of parties, as a result of which a different ruling on the above issue would not change the result reached in the opinion. However, upon this point, we note that the applicable law to the practice sought to be employed by appellants is well stated as follows:

'* * * It may be said in passing that it must be remembered that in appeals to this court the certified transcript of the record imports upon its face absolute verity, and statements of parties or their counsel, whether verified or unverified, are not available to dispute the record, or to supply any matter not therein disclosed. * * *' [Our emphasis.] Whisler v. Whisler (1904), 162 Ind. 136, 141, 67 N.E. 984, 70 N.E. 152.

Some of the numerous additional authorities to the same effect are Kain v. State (1955), 234 Ind. 160, 123 N.E.2d 177, 125 N.E.2d 436; Bayman v. Farmers Mutual Fire Ins. Assn. (1938), 213 Ind. 389, 12 N.E.2d 945; Chicago, etc., R. Co. v. Public Service Commission (1919), 188 Ind. 334, 121 N.E. 276, 123 N.E. 465.

In addition, no pleading or brief of appellants heretofore filed has ever raised the question here sought to be raised concerning the fact of or the date of the death of certain of the petitioners. Thus appellants' supplemental 'affidavit of the parties' presents new matter not previously considered. A new question cannot first be raised on petition for rehearing. Such questions are considered waived. Hutchinson's Estate v. Arnt, Admx. (1936), 210 Ind. 509, 1 N.E.2d 585, 4 N.E.2d 202, 108 A.L.R. 530; Chicago, etc., R. Co. v. Steele (1918), 187 Ind. 358, 118 N.E. 824, 119 N.E. 483; In re Petition of the Pittsburgh, etc., Railway Company (1897), 147 Ind. 697, 47 N.E. 151.

Secondly, appellants reassert that their action herein, to review a prior judgment, was timely filed since it was filed within 90 days after the judgment in the original action.

Upon this issue some amplification of the original opinion seems justified. The applicable part of the statutory provision, quoted by this court in its original opinion, is as follows:

'* * * The order of the court approving and confirming the assessments and declaring the proposed work established shall be final and conclusive, unless an appeal therefrom to the Supreme Court be taken and an appeal bond filed within thirty days, * * *.' Acts 1947, ch. 249, § 2, p. 1003, being § 27-803, Burns' 1960 Repl., p. 685.

Supreme Court Rule 2-2 does not enlarge this rule, as argued by appellants, but requires conformity therewith. It provides. in part:

'In all appeals and reviews the assignment of errors and transcript of the record must be filed in the office of the clerk of the Supreme Court within 90 days from the date of the judgment or the ruling on the motion for a new trial, unless the statute under which the appeal or review is taken fixes a shorter time, in which latter event the statute shall control. * * *' [Our emphasis.]

Appellants quote Pullin et al. v. Arnold et al. (1954), 234 Ind. 13, 15, 122 N.E.2d 858, 859, in which this court stated:

'In special statutory proceedings like this, 'the rules of civil practice prevail, except when it is otherwise provided, or when they are plainly inapplicable.'' (Cases cited.) [Our emphasis.]

However, the above case...