Indiana Alcoholic Beverage Commission v. Biltz, No. 20745

Docket NºNo. 20745
Citation235 N.E.2d 79, 142 Ind.App. 418
Case DateMarch 27, 1968
CourtCourt of Appeals of Indiana

Page 79

235 N.E.2d 79
142 Ind.App. 418
The INDIANA ALCOHOLIC BEVERAGE COMMISSION, Appellant,
v.
Imogene BILTZ, Appellee.
No. 20745.
Appellate Court of Indiana, En Banc.
March 27, 1968.

[142 Ind.App. 419]

Page 80

John J. Dillon, Atty. Gen., Frank M. Maley, Deputy Atty. Gen., for appellant.

James C. Courtney, James W. Bradford, Indianapolis, for appellee.

COOPER, Judge.

This is a proceeding for a a judicial review of a final order and decision of the Superior Court of Marion County in General Term, which was adverse to the Appellant, Indiana Alcoholic Beverage Commission, hereinafter designated as the A.B.C.

This matter is now before us on the Appellee's Motion to Dismiss, which said Motion is as follows:

'Appellee, Imogene Biltz, respectfully moves this Court that this appeal be dismissed and shows the following facts in support thereof:

[142 Ind.App. 420] '1. Appellant has not perfected its appeal within 90 days from the day of Final Order of General Term of Marion Superior Court, contrary to Rule 2--2 of the Indiana Supreme Appellate Courts.

'2. The statute under which this matter was appealed to the General Term of the Marion Superior Court provides that the Order of the Court 'shall be final' and no further appeal is authorized (Acts 1935, Chapter 226, Sec. (42) 46, Page 1056; 1937, Chapter 197, Sec. 12, Page 931; 1939 Chapter 30, Sec. 7, Page 79--Burns' Ind.Stats.Ann. 12--921.

'WHEREFORE, Appellee prays that the appeal be dismissed with prejudice, the costs of this action be assessed against the Appellant, and for all other relief proper in the premises.'

It is the contention of the A.B.C. that it has perfected its appeal pursuant to Rule 2--2 of the Rules of the Supreme Court of Indiana.

In reviewing the record now before us, it appears that the Marion Superior Court in General Term rendered its final order and decision on July 1, 1966. The A.B.C. filed a motion for a new trial on July 5, 1966. On February 6, 1967, the reviewing court overruled the A.B.C.'s motion for a new trial.

Thereafter, on April 27, 1967, the A.B.C. filed a petition for an extension of time in which to file its transcript of the record and assignment of errors. This petition was granted and the time was extended to and including June 1, 1967, in which to file said record and assignment of errors. Subsequently, the A.B.C. filed two additional petitions for extensions of time both of which were granted, and the last order which was granted extended the time to and including August 30, 1967, in which to file the transcript of the record and the assignment of errors. The transcript and assignment of errors were filed with the Clerk of this court on August 30, 1967.

Page 81

Historically, there was no right of appeal from a ministerial act of an administrative board unless such right was specifically given by the statute. See Cushman v. Hussey (1918) [142 Ind.App. 421] 187 Ind. 228, 118 N.E. 816; State Board of Health, etc., v. Ort, Township Trustee (1926) 84 Ind.App. 260, 151 N.E. 31.

It was further held that the right of appeal from administrative boards applied only to decisions involving the exercise of judicial power. See Financial Aid Corp. v. Wallace, Dir. of the Dept. of Financial Inst. et al. (1939) 216 Ind. 114, 23 N.E.2d 472, 125 A.L.R. 736; Board of Commissioners of Dearborn County v. Droege et al. (1946) 224 Ind. 446, 68 N.E.2d 650; Hall et al. v. Kincaid et al. (1917) 64 Ind.App. 103, 115 N.E. 361.

It was previously held that where the special statutes regulating procedure before administrative boards failed to provide for appellate review of the findings of the Court which reviewed the orders of administrative board, such appellate review could not be taken. See Cincinnati I. & W.R. Co. et al., v. Board of Public Works of the City of Indianapolis, et al., 187 Ind. 235, 118 N.E. 957; Luten v. Schmidt, et al. (1928) 88 Ind.App. 134, 163 N.E. 536; Stockton et al. v. Yeoman et al. (1912) 179 Ind. 61, 100 N.E. 2; Hughes, et al., v. Parker et al. (1897) 148 Ind. 692, 48 N.E. 243; Randolph v. City of Indianapolis et al. (1909) 172 Ind. 510, 88 N.E. 949; Brown, et al., v. Porter (1871) 37 Ind. 206.

The rule as set out in the foregoing cases is no longer valid since the holding of our Supreme Court in the case of Warren v. Indiana Telephone Co. In that case, the Supreme Court stated that even when the legislature has not provided for an appeal to the Supreme Court, such right exists under constitutional authority. See Warren v. Indiana Telephone Company (1940) 217 Ind. 93, 26 N.E.2d 399; Joseph E. Seagram and Sons, Inc., v. Board of Commissioners of Awrenceburg Flood Control District (1943) 220 Ind. 604, 45 N.E.2d 491; Public Service Commission of Indiana et al., Indianapolis Water Co. v. City of Indianapolis (1956) 235 Ind. 70, 83, 131 N.E.2d 308.

[142 Ind.App. 422] The same rule applies in those instances in which the statute prohibits an appeal or declares that the judgment of the nisi prius court is to be final. Therefore, we are of the opinion that the provision in Sec. 12--921, Burns' Indiana Statutes Annotated that the order of the Court (in this case, the Marion Superior Court in General Term) shall be final, is ineffective. See also the 1965 amendments of Sec. 12--921, Burns' Indiana Statutes, pertaining to the lower courts having jurisdiction...

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3 practice notes
  • Monon R. Co. v. Citizens of Sherwood Forest Addition, Marion County, No. 1268A218
    • United States
    • Indiana Court of Appeals of Indiana
    • April 27, 1970
    ...of the appeal and we only have jurisdiction to dismiss the matter. Indiana Alcoholic Beverage Comm. v. Blitz (1968), Ind.App., 235 N.E.2d 79; Stover v. Parker GMC Truck Sales, Inc., supra; City of Indianapolis v. Hoffman (1966), 247 Ind. 228, 213 N.E.2d 700; Schilling v. Ritter (1963), 134 ......
  • Gerhardt v. City of Evansville, No. 1-779A207
    • United States
    • Indiana Court of Appeals of Indiana
    • August 26, 1980
    ...(Castor v. City of Winchester) (1959) 130 Ind.App. 397, 400, 162 N.E.2d 97. Indiana Alcoholic Beverage Commission v. Biltz, (1968) 142 Ind.App. 418, 235 N.E.2d 79, 81-82. (Emphasis Warren and its progeny have held that the availability of judicial review of administrative decisions is a con......
  • Colbert v. Allied Concord Financial Corp., No. 470A69
    • United States
    • October 26, 1970
    ...deprives this Court of jurisdiction of the appeal, and we only have jurisdiction to dismiss the matter. Ind. A.B.C. v. Biltz (1968), 142 Ind.App. 418, [147 Ind.App. 617] 235 N.E.2d 79; Stover v. Parker GMC Truck Sales (1967), 140 Ind.App. 475, 223 N.E.2d 777, 778; City of Indianapolis v. Ho......
3 cases
  • Monon R. Co. v. Citizens of Sherwood Forest Addition, Marion County, No. 1268A218
    • United States
    • Indiana Court of Appeals of Indiana
    • April 27, 1970
    ...of the appeal and we only have jurisdiction to dismiss the matter. Indiana Alcoholic Beverage Comm. v. Blitz (1968), Ind.App., 235 N.E.2d 79; Stover v. Parker GMC Truck Sales, Inc., supra; City of Indianapolis v. Hoffman (1966), 247 Ind. 228, 213 N.E.2d 700; Schilling v. Ritter (1963), 134 ......
  • Gerhardt v. City of Evansville, No. 1-779A207
    • United States
    • Indiana Court of Appeals of Indiana
    • August 26, 1980
    ...(Castor v. City of Winchester) (1959) 130 Ind.App. 397, 400, 162 N.E.2d 97. Indiana Alcoholic Beverage Commission v. Biltz, (1968) 142 Ind.App. 418, 235 N.E.2d 79, 81-82. (Emphasis Warren and its progeny have held that the availability of judicial review of administrative decisions is a con......
  • Colbert v. Allied Concord Financial Corp., No. 470A69
    • United States
    • October 26, 1970
    ...deprives this Court of jurisdiction of the appeal, and we only have jurisdiction to dismiss the matter. Ind. A.B.C. v. Biltz (1968), 142 Ind.App. 418, [147 Ind.App. 617] 235 N.E.2d 79; Stover v. Parker GMC Truck Sales (1967), 140 Ind.App. 475, 223 N.E.2d 777, 778; City of Indianapolis v. Ho......

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