Guthrie v. Blakely, No. 18705
| Docket Nº | No. 18705 |
| Citation | 131 N.E.2d 357, 127 Ind.App. 119 |
| Case Date | January 19, 1956 |
| Court | Court of Appeals of Indiana |
Page 357
v.
Catherine Delores BLAKELY, et al., Defendant-Appellees.
J. B. Fleck and Sons and Company, et al., Intervenors-Appellees.
Concurring Opinions Jan. 20, 1956.
[127 Ind.App. 121]
Page 358
Frederick K. Baer, Thomas H. Fisher, South Bend, for appellant.Lenn J. Oare, Seebirt, Oare & Deahl, South Bend, for appellees.
[127 Ind.App. 140] ROYSE, Chief Judge.
Appellees have filed a petition for rehearing in this case, which, in our opinion, does not show error and should be denied. Also, we believe the petition should be denied for another reason:
[127 Ind.App. 141] Rule 2-22, Rules of the Supreme Court, provides as follows:
'Application for a rehearing of any cause shall be made by petition, separate from the briefs, signed by counsel, and filed with the clerk within 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 10 days after the filing of the petition.' (Our emphasis.)
The purported petition for rehearing contains more than twenty-three typewritten pages. It is not a concise statement of why they believe our decision is erroneous. It is primarily an argumentative brief which does not comply with the above rule.
The Rules of the Supreme Court have the force and effect of law and are binding on the courts as well as litigants. State ex rel. Woods v. Knox Circuit Court, 1954, 233 Ind. 552, 121 N.E.2d 880; State ex rel. Hunt v. Heil, 1951, 229 Ind. 250, 96 N.E.2d 337, 97 N.E.2d 634; McCague v. New York, etc., R. Co., 1947, 225 Ind. 83, 71 N.E.2d 569, 73 N.E.2d 48; James C. Curtis & Co. v. Emmerling, 1941, 218 Ind. 172, 31 N.E.2d 57, 986; Earl v. State, 1926, 197 Ind. 703, 151 N.E. 3; Magnuson v. Billings, 1899, 152 Ind. 177, 52 N.E. 803; Allmon v. Review Board of Indiana, 1953, 124 Ind.App. 212, 116 N.E.2d 115; Waters v. Perfect Circle Corporation, 1953, 124 Ind.App. 70, 114 N.E.2d 436; Witte v. Witte, 1953, 123 Ind.App. 644, 113 N.E.2d 166; Hoover v. Shaffer, 1948, 118 Ind.App. 399, 80 N.E.2d 569; Fetter v. Powers, 1948, 118 Ind.App. 367, 78 N.E.2d 555; Blake v. State, 1943, 114 Ind.App. 1, 48 N.E.2d 651; Heckman v. Howard, 1941, 109 Ind.App. 548, 36 N.E.2d [127 Ind.App. 142] 957; Hillyer v. Boyd, 1941, 109 Ind.App. 18, 32 N.E.2d 93; Union Ins. Co. of Indiana v. Glover, 1941, 109 Ind.App. 315, 34 N.E.2d 934; Kubisiak v. Kubisiak, 1941, 108 Ind.App. 664, 31 N.E.2d 656; Thompson v. Cleveland, C., C. & St. L. R. Co., 1937, 105 Ind.App. 97, 11 N.E.2d 81; Martin v. Petgin, 1937, 104 Ind.App. 308, 11 N.E.2d 59; Miller v. Miller, 1937, 104 Ind.App. 298, 10 N.E.2d 746; Jones v. Moise, 1937, 104 Ind.App. 390, 8 N.E.2d 99; Lindeman v. Lindeman, 1937, 103 Ind.App. 494, 8 N.E.2d 1004; Humphrey v. Pleasure Park Co., 1933, 97 Ind.App. 592, 187 N.E. 682; Gedney & Sons, Inc., v. Tinner, 1933, 95 Ind.App. 544, 183 N.E. 886; Loeser v. Goldberg, 1932, 95 Ind.App. 52, 182 N.E. 462; Bingham v. Newtown Bank, 1916, 63 Ind.
Page 359
App. 606, 114 N.E. 97; Chicago, I. & L. R. Co. v. Priddy, 1917, 65 Ind.App. 552, 108 N.E. 238, 115 N.E. 266; Rook v. Straus Bros. Co., 1906, 60 Ind.App. 381, 110 N.E. 1006; Rooker v. John Hancock Mut. Life Ins. Co., 1933, 98 Ind.App. 478, 184 N.E. 306; Knickerbocker Ice Co. v. Surprise, 1913, 5o Ind.App. 286, 97 N.E. 357, 99 N.E. 58; Griffith v. Felts, 1913, 52 Ind.App. 268, 99 N.E. 432; Price v. Swartz, 1912, 49 Ind.App. 627, 97 N.E. 938; Webster v. Bligh, 1912, 50 Ind.App. 56, 98 N.E. 73; Dillon v. State, 1911, 48 Ind.App. 495, 96 N.E. 171. Thus we see the rules have been so construed for nearly fifty years. We have been unable to find any decision of the Supreme or of this court holding otherwise.This applies to each rule. It has been applied to the above quoted rule. Reed v. Kalfsbeck, 1897, 147 Ind. 148, 157, 45 N.E. 476, 46 N.E. 466; Baltimore & O. S. W. Ry. Co. v. Conoyer, 1898, 149 Ind. 524, 532, 48 N.E. 352, 49 N.E. 452; Goodwin v. Goodwin, 1874, 48 Ind. 584, 596; Terre Haute, Indianapolis[127 Ind.App. 143] & Eastern Traction Co. v. Scott, 1930, 91 Ind.App. 690, 694, 170 N.E. 341, 172 N.E. 659 (Transfer denied).
In Indiana Trial and Appellate Practice, Flanagan, Wiltrout and Hamilton, Vol. 2, § 2833, pp. 397, 398, after quoting the rule it is stated the petition must state concisely why the decision is thought to be erroneous, citing numerous authorities.
We, as an intermediate appellate tribunal, are bound by the ruling precedents of the Supreme Court. It may be that in the past petitions for rehearing that failed to comply with the rule have been acted on without question. That perhaps was caused by the failure of counsel to call the attention of the court to such violation. However, it is our duty to obey the rule and adhere to the construction placed upon it by the Supreme Court. We have no right or authority to amend, alter or ignore the rule. This is true whether the violation is brought to our attention by the parties or by this court.
For the reason the petition for rehearing does not comply with the foregoing rule, it presents no question. Therefore, the petition is denied.
KELLEY, J., concurs in result with opinion.
BOWEN, J., concurs in result only, with opinion.
KELLEY, Judge (concurring).
We have denied the petition for rehearing filed by the appellees in the above appeal. That the petition should be denied for the reason that it fails to show error in the opinion handed down, meets with no opposition. However, an additional element or reason for denial has been injected which I think needs some attention. The new matter pertains to the compliance by the petitioner with Rule 2-22 of the Supreme Court. This rule was adopted April 17, 1940 and became effective [127 Ind.App. 144] September 2, 1940. It was amended June 17, 1943, effective September 6, 1943.
The material substance of this particular rule, as it now stands, has been in effect...
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Slater v. Stoffel, Nos. 668
...such judgment must have been on the merits. Johnson v. Knudson-Mercer Co. (1906), 167 Ind. 429, 79 N.E. 367; Guthrie v. Blakely (1955), 127 Ind.App. 119, 130 N.E.2d 62, 131 N.E.2d 357; Banta v. Banta (1948), 118 Ind.App. 117, 76 N.E.2d 698, 77 N.E.2d 597; Evansville American Legion Home Ass......
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Michel v. Forde, No. 19654
...Court as to its preparation; and we are able fully to understand the issues and points raised therein. Guthrie v. Blakely et al. (1956), 127 Ind.App. 119, 130 N.E.2d 62, 131 N.E.2d As revealed by the briefs, the significant facts disclose that appellee was a regular employee of Indiana Driv......
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Hancock Rural Tel. Corp. v. Public Service Commission, No. 20077
...said twenty (20) day period. The Supreme Court rules being binding upon all litigants and the court, Guthrie v. Blakely et al. (1955), 127 Ind.App. 119, 130 N.E.2d 62, 131 N.E.2d 357; Muniz etc. v. United States et al., supra, and the record being thus conclusive as to appellee Commission's......
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Hirsch v. Merchants Nat. Bank & Trust Co. of Indiana, No. 1--1074A144
...appellants was in dispute and the finding of the court was adverse to appellants. We cannot weigh the evidence.' 126 Ind.App. at 501, 131 N.E.2d at 357. In the case at bar the burden of proof was on Hirsch, as there was no re- letting clause in the lease. The evidence concerning the matter ......
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Slater v. Stoffel, Nos. 668
...such judgment must have been on the merits. Johnson v. Knudson-Mercer Co. (1906), 167 Ind. 429, 79 N.E. 367; Guthrie v. Blakely (1955), 127 Ind.App. 119, 130 N.E.2d 62, 131 N.E.2d 357; Banta v. Banta (1948), 118 Ind.App. 117, 76 N.E.2d 698, 77 N.E.2d 597; Evansville American Legion Home Ass......
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Michel v. Forde, No. 19654
...Court as to its preparation; and we are able fully to understand the issues and points raised therein. Guthrie v. Blakely et al. (1956), 127 Ind.App. 119, 130 N.E.2d 62, 131 N.E.2d As revealed by the briefs, the significant facts disclose that appellee was a regular employee of Indiana Driv......
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Hancock Rural Tel. Corp. v. Public Service Commission, No. 20077
...said twenty (20) day period. The Supreme Court rules being binding upon all litigants and the court, Guthrie v. Blakely et al. (1955), 127 Ind.App. 119, 130 N.E.2d 62, 131 N.E.2d 357; Muniz etc. v. United States et al., supra, and the record being thus conclusive as to appellee Commission's......
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Hirsch v. Merchants Nat. Bank & Trust Co. of Indiana, No. 1--1074A144
...appellants was in dispute and the finding of the court was adverse to appellants. We cannot weigh the evidence.' 126 Ind.App. at 501, 131 N.E.2d at 357. In the case at bar the burden of proof was on Hirsch, as there was no re- letting clause in the lease. The evidence concerning the matter ......