Clary v. National Friction Products, Inc.

• Citation: 31 Ind.Dec. 270,283 N.E.2d 574
• Decision Date: 12 June 1972
• Docket Number: 172A4,Nos. 172A3,s. 172A3
• Parties: Margaret A. CLARY, Appellant, v. NATIONAL FRICTION PRODUCTS, INC., Appellee. Marlene T. REINHOLD, Appellant, v. NATIONAL FRICTION PRODUCTS, INC., Appellee.
• Court: Indiana Appellate Court

Page 574

283 N.E.2d 574

Margaret A. CLARY, Appellant, v. NATIONAL FRICTION PRODUCTS, INC., Appellee.

Marlene T. REINHOLD, Appellant, v. NATIONAL FRICTION PRODUCTS, INC., Appellee.

Nos. 172A3, 172A4.

Court of Appeals of Indiana, Second District.

June 12, 1972.

Rehearing Denied June 26, 1972.

Opinion Superseded 290 N.E.2d 53.

Ross P. Walker, Indianapolis, for appellants.

Theodore L. Locke, Jr., Locke, Reynolds, Boyd & Weisell, Indianapolis, for appellee.

ON APPELLEE'S MOTION TO DISMISS OR AFFIRM

PER CURIAM.

These cases are before the Court on the appellee's Motion to Dismiss or Affirm. The facts giving rise to the motions are the same in each of the above-captioned cases, and therefore the two cases are now consolidated on the Court's own motion for disposition by this opinion.

These are cases in which the appellants seek judicial review of negative awards of the full Industrial Board of Indiana. The appellee has filed motions to dismiss or affirm in both cases alleging, in substance, that the appeals were not perfected within thirty days from the award of the full Board, and that the appellants have failed to file assignments of error. An examination of the records in these cases reveals that in each case, both contentions are true.

The date of the award of the Board in each case was November 5, 1971. Thereafter, on November 11, 1971, motions to correct errors were filed in both cases. The Board denied the motions on December 7, 1971, after which, on December 15, 1971, the appellants filed their praecipes for the records. Both records were filed in this Court on January 4, 1972. On extensions of time within which to file these records were petitioned for, and none were granted by this Court.

The statute concerning appeals from awards of the full Industrial Board, Ind.Ann.Stat. § 40-1512 (Burns 1965 Repl.), IC 1971, 22-3-4-8, reads in pertinent part as follows:

'An award by the full board shall be conclusive and binding as to all questions of (the) fact, but either party to the dispute may within thirty (30) days from the date of such award appeal to the Appellate Court for errors of law under the same terms and conditions as govern appeals in ordinary civil actions.' (our emphasis)

The statute further provides:

'An assignment of errors that the award of the full board is contrary to law shall be sufficient to present both the sufficiency of the facts found to sustain the award and the sufficiency of the evidence to sustain the finding of facts.'

Because the appellants have not perfected their appeals within the time allowed by the statute, or within time as might have been extended by this Court on timely filed petitions, the Court does not have jurisdiction of these cases and the same must be dismissed.

The appellants earnestly contend that the Indiana Rules of Procedure apply to their cases and govern the method of appeal from the Industrial Board, rather than the above-quoted statute. Appellants rely on the recent cases of Indiana State Personnel Board v. Wilson (1971), Ind., 271 N.E.2d 448, and Bradburn v. County Department of Public Welfare (1971), Ind.App., 266 N.E.2d 805, in support of their position. We have carefully read and reflected upon these opinions and have concluded they are not applicable to the cases now before us.

In both the Wilson and Bradburn cases, a motion to dismiss was sustained because the appellant did not file a motion to correct errors in the trial court before appealing. The Wilson case was an appeal from the Superior Court of Marion County from a judgment entered by that court in a proceeding to review a determination of the State Personnel Board. The Supreme Court sustained the appellee's motion to dismiss and concluded that all matters of which a party complains in any proceedings in a trial court must be brought to the attention of the court and the court be given the opportunity to correct its errors. The Bradburn case was an appeal from the St. Joseph Circuit Court from a judgment on an agreed case. The Appellate Court sustained the motion to dismiss filed in that case and held that in all appeals from a final judgment, the appealing party must file in the trial court a motion to correct errors as a condition precedent to an appeal.

One of the functions of the motion to correct errors is to preserve alleged errors for appeal. Those errors occurring up to the time of the filing of the motion, which are not included in the motion, are waived on appeal. The statute pertaining to appeals from the Industrial Board states:

'An assignment of errors that the award of the full board is contrary to law shall be sufficient to present both the sufficiency of the facts found to sustain the award and the sufficiency of the evidence to sustain the finding of facts.'

We note that in the motion to correct errors in each of the cases now before us, the appellant has alleged, inter alia, that the decision of the full Board is contrary to law. Therefore, the Court could have considered these cases on the merits if we had acquired jurisdiction by the timely filing of the records of the proceedings, within thirty days after the awards of the Board, or within time as might have been extended by this Court.

Each of the several administrative agencies is a creature of the legislature. The procedures to be followed in presenting matters to these agencies and in appeals therefrom are specifically set out in the statutes pertaining to each. We do not think the rules of trial procedure, which, as stated in TR. 1, IC 1971, 34-5-1-1, govern the procedure and practice in all courts of the State of Indiana, are applicable to proceedings before, and appeals from, the administrative agencies. The Supreme Court of Indiana has not spoken on this question. The Supreme Court has spoken as recently as February 23, 1972, in an opinion denying rehearing in the case of State of Indiana v. Bridenhager, et al., Ind., 279 N.E.2d 794, on the precedence of the new rules of procedure over statutory rules of procedure in conflict therewith. Again, that case was an appeal from a trial court, as were the Wilson and Bradburn cases, and the Court had before it a question pertaining to a particular trial rule and its application in the...