Flick v. Simpson, 967A60

• Decision Date: 05 February 1970
• Docket Number: No. 967A60,No. 2,967A60,2
• Citation: 255 N.E.2d 118,145 Ind.App. 698
• Court: Indiana Appellate Court
• Parties: Norman Z. FLICK, Appellant, v. Virgil O. SIMPSON, Appellee

Page 118

255 N.E.2d 118

145 Ind.App. 698

Norman Z. FLICK, Appellant, v. Virgil O. SIMPSON, Appellee.

No. 967A60.

Appellate Court of Indiana, Division No. 2.

Feb. 5, 1970.

James Manahan, Dean E. Richards, Indianapolis, for appellant; DeWitt, Richards & Manaham, Indianapolis, of counsel).

Tony Foster, Donald L. Jackson, Indianapolis, for appellee; Bingham, Summers, Welsh & Spilman, Indianapolis, of counsel.

OPINION ON PETITION FOR REHEARING

WHITE, Judge.

In our opinion affirming the trial court's judgment against appellant we stated that a deposition filed on the day preceding the trial was timely filed pursuant to Burns' Ind.Stat.Ann. § 2--1519 (1968 Repl.). That statute entitles an adverse-party to a continuance 'upon showing good cause by affidavit' if a deposition which has not been 'filed in court at least one day before * * * trial' is 'claimed to be used, on the trial.' The petition for rehearing alleges that in holding the deposition to have been timely filed we 'erred and failed to follow past precedent set by the Indiana Supreme Court.' Appellant's brief in support of his petition discloses the precedent to be:

"A day begins with the passing of midnight and continues until the succeeding midnight.' Moag v. State, (1941) 218 Ind. 135, 31 N.E.2d 629, 632, Benson v. Adams, (1879) 69 Ind. 353, 35 Am.Rep. 220, Kirkpatrick v. King, (1950) 228 Ind. 236, 91 N.E.2d 785'

Appellant's appeal brief ¹ did not cite those cases nor that rule and made no argument that a deposition filed the day before trial was not timely filed. On the contrary, appellant contended that he should have had a continuance because.

'said deposition was not published and made of record until May 9, 1968, immediately prior to the hearing of the evidence in the cause. * * * The statute, as set forth above, in cases of the late filing of a deposition, clearly requires the court to grant a continuance to the adverse party upon his application and good cause shown. ² Upon the filing and publication of the deposition, the defendant herein, by counsel, renewed his motion for continuance, based upon the absence of the party defendant to the cause.'

After appellee's brief pointed out that the deposition was actually filed May 8, 1967, not May 9, 1967, the appellant then, in his reply brief, for the first time cited those three cases in support of his new position that the day before trial is not 'one day before * * * trial'. Our opinion ignored the new argument and ignored the citations supporting it. ³ The writer may have been remiss in not mentioning the new argument and why it was not discussed on its merits.

'It is well settled in appellate practice that questions not raised or discussed in appellant's original brief cannot be presented in appellant's reply brief.' State v. Marion Cir.Ct. (1958), 238 Ind. 637, 645, 153 N.E.2d 327, 330; Miller Monuments, Inc. v. Asbestos Insulating, etc., (1962), 134 Ind.App. 48, 51, 185 N.E.2d 533. One reason for that rule is that the appellee has no opportunity to answer a reply brief. McBeth Evans Glass Co. v. Jones (1911), 176 Ind. 221, 224, 95 N.E. 567; Michaels v. Johnson (1967), 140 Ind.App. 389, 392, 223 N.E.2d 585, 225 N.E.2d 581.

If appellee had had an opportunity to answer appellant's new argument that filing 'on the day prior to trial * * * is not 'one day' in advance of trial as the pertinent statute requires', he may well have called our attention to the following cases:

In State ex rel. Durham v. Marion Circuit Court (1959), 240 Ind. 132, 135, 162 N.E.2d 505, the Supreme Court of Indiana said:

'The relator claims the necessary five days did not elapse 'from the time the accusation was presented' to the day the relator herein was cited to appear. The citation to appear was issued on August 26, 1959, for Durham to appear on August 31, 1959.

'Burns' § 2--4704 reads as follows:

"Computation of time--The time within which an act is to be done, as herein provided, shall be computed by excluding the first day and including the last. If the last day be Sunday, it shall be excluded. (Acts 1881 (Spec.Sess.), ch. 38, § 849, p. 240.)'

'Since the statute makes no reference to calculations of fractional parts of the day and there is no evidence here when, on August 26th 'the accusation was presented,' we have no grounds for holding that less than five days elapsed. The relator points to the record which shows that the citation was received in the sheriff's office at 1:41 p.m. on August 26th. This, however, is no evidence of when the accusation 'was presented' in court and the point from which the time made that less than the statutory period of five days had run at the time period of five days had run at the time the relator Durham was cited to appear.' (240 Ind. at 135, 162 N.E.2d at 506.)

In Keeling v. Board of Zoning Appeals (1946), 117 Ind.App. 314, 320, 69 N.E.2d 613, 616, a rule of the Board of zoning appeals required that notice 'be give by the petitioner by leaving or last known address, or petitioner by leaving or mailing said notice to the residence, or last known address, of (5) days before the date of hearing * * *.' We there said:

'The application for a variance was filed by appellee churchs with the Board of Zoning Appeals on August 16, 1945, and the hearing thereon was set for August 27, 1945. Notice on the prescribed forms was served upon the interested parties involved as property owners by registered mail, posted on August 22, 1945. Service of notice so served as proved by the required affidavit filed with the board.

'Section 29 of the zoning ordinance provides that notice of a hearing must be published 'at least seven (7) days prior to the time fixed for such hearing.' Publication of notice of the hearing was made on August 20, 1945, and proof of such publication duly filed with the board.

'It is asserted by appellants that the notice given as aforesaid was insufficient under the requirements of Section 29 of the zoning ordinance and Article VII of the rules of procedure, supra. Appellants' contention is based upon the proposition that five and seven full days of 24...