Guthrie v. Blakely

• Decision Date: 19 January 1956
• Docket Number: No. 18705,18705
• Citation: 131 N.E.2d 357,127 Ind.App. 119
• Parties: Florence M. GUTHRIE, Plaintiff-Appellant, v. Catherine Delores BLAKELY, et al., Defendant-Appellees. J. B. Fleck and Sons and Company, et al., Intervenors-Appellees.
• Court: Indiana Appellate Court

Page 357

131 N.E.2d 357

127 Ind.App. 119

Florence M. GUTHRIE, Plaintiff-Appellant, v. Catherine Delores BLAKELY, et al., Defendant-Appellees.

J. B. Fleck and Sons and Company, et al., Intervenors-Appellees.

No. 18705.

Appellate Court of Indiana, In Banc.

Jan. 19, 1956.

Concurring Opinions Jan. 20, 1956.

Frederick K. Baer, Thomas H. Fisher, South Bend, for appellant.

Lenn J. Oare, Seebirt, Oare & Deahl, South Bend, for appellees.

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:

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 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 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 & 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 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 for 15 years. Yet I know of no case, nor have I been able to find any, until a recent case in which I did not participate, in which a petition for rehearing was denied or dismissed on the ground that it contained some argument or citation of authorities.

It has been a somewhat common practice for attorneys to incorporate a degree of argument with citation of authorities in their petitions for rehearing, and, to my best recollection, we never have raised or noted any objection to the consideration of such petitions because they did not strictly comply with the rule stated. Vainly have I endeavored to find one case, other than the aforesaid recent one not participated in by me, wherein the rehearing petition was denied or dismissed upon the ground now referred to. All of the cases I found held that the petition stated no proper ground for rehearing or that the petition 'does not state any particular cause or errors by reason of which the decision of the court * * * is supposed to be erroneous.' Reed v. Kalfsbeck, 1897, 147 Ind. 148, 157, 45 N.E. 476, 46 N.E. 466. See, also, 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, and Terre Haute, Indianapolis & Eastern Traction Co. v. Scott, 1930, 91 Ind.App. 690, 694, 170 N.E. 341, 172 N.E. 659.

The cases and the rule all provide that the petition must state concisely the reasons why the decision is thought to be erroneous. That, of course, is fundamental. But under the present inclination of this court, a petition which does concisely state such reasons is to be denied or dismissed because some argument or citation of authorities is contained therein. Certainly, the rule does not state that the petition can contain no words of argument and no citation of authorities, no matter how brief or few in number. Under the rule, what prevents our consideration of such matter as surplusage? In our Code pleading, a complaint, answer, or other pleading, is not dismissed or thrown out because it contains surplusage. The only right given with reference thereto is to have the surplusage set aside or stricken out on motion. Burns, 1946 Replacement, Sec. 2-1054. But under our construction of said Rule 2-22, a client or litigant, perhaps in a very important and essential appeal, with vital interests and much property at stake, is to be deprived of consideration by our Supreme Court of the merits of his cause and the virtue of our opinion by the sudden and unexpected asserted violation of the rule which, in fact, does not provide that he can have no argument nor citation of authorities in his petition. The rule states that the 'reasons' must be concisely stated. It does not provide that the 'petition', itself, must be concise nor that it can contain nothig but the states reasons.

All these many years we have lulled the profession, and particularly those attorneys who participate frequently in appeals and appellate procedure, into a belief that we do not insist upon a rigid compliance with the stated rule and they have come, insofar as more or less minor infractions are concerned, to rely upon our past record with regard thereto. If we now intend to insist upon strict compliance with the rule, then let us first determine exactly what the rule means, the scope thereof, and advise the bar of our intention to dismiss all rehearing petitions which are not in complete compliance therewith.

Under the circumstances, it seems to me that we would do well to heed the expression of the highest authority in our Nation. As stated in 14 Am.Jur., Courts, page 361, Sec. 157, '* * * the statement has been made by the very highest authority that rules of court are merely the means to accomplish justice, and that it is always in the power of the court to suspend its own rules and except a particular case from its operation whenever the purposes of justice...