Indiana Bd. of Beauty Culturist Examiners v. Royal Beauty Academy, Inc.
| Decision Date | 07 February 1968 |
| Docket Number | No. 20722,20722 |
| Citation | 233 N.E.2d 697,142 Ind.App. 175 |
| Parties | The INDIANA BOARD OF BEAUTY CULTURIST EXAMINERS, Appellant, v. ROYAL BEAUTY ACADEMY, INC., d/b/a Royal Beauty Academy of Washington, Indiana, Appellee. |
| Court | Indiana Appellate Court |
John J. Dillon, Atty. Gen. of Indiana, Michael Sara, Deputy Atty. Gen., Indianapolis, James R. Arthur, Sp. Pros. Atty., Daviess County, for appellant.
Robert Hollowell, Robert Robinson, Hollowell & Robinson, Indianapolis, of counsel, for appellee.
This is a proceeding for judicial review of a ruling and judgment of the Daviess Circuit Court adverse to appellant, The Indiana Board of Beauty Culturist Examiners.
On July 27, 1966, the trial court found for the appellee and thereupon entered judgment accordingly. The Board filed a motion for new trial on August 17, 1966, and on November 21, 1966, the trial court overruled such motion. The Board thereafter filed its transcript and assignment of errors in this court on February 15, 1967.
Supreme Court Rule 2--2 provides, in part: 'In all appeals and reviews the assignment of errors and transcript of the record must be filed in the office of the Clerk of the Supreme Court (or Appellate Court) within 90 days from the date of the judgment or the ruling on the motion for new trial (whichever is later), unless the statute under which the appeal or review is taken fixes a shorter time, in which latter event the statute shall control * * *'.
The Administrative Adjudication and Court Review Act, Burns' Ind.Stat.Anno. § 63--3019, clearly states that no motion for new trial shall be permitted prior to appealing the decision of the trial court. Thus, any motion for new trial filed in such an action is a nullity, and such a motion cannot operate to extend the time in which the transcript and assignment of errors must be filed in this court.
Appellant contends that the Administrative Adjudication Act has no application to reviews from The Board of Beauty Culturist Examiners because Burn's Ind.Stat.Anno. § 63--1824a states that the Administrative Adjudication Act 'shall not apply to the board or its action or inaction'.
We find that § 63--1824a does not purport to except the Board of Beauty Culturist Examiners from the appeal provisions of the Administrative Adjudication Act, but only excepts proceedings before the Board. The Beauty Culture Law contains provisions for an 'appeal' to a circuit court, but there are no provisions relating to appeals from circuit courts to this court. Thus, we hold that actions for judicial review from these proceedings are governed by § 63--3019. This is in accordance with the declared intent of the Administrative Adjudication Act that it apply to all administrative determinations except those specifically excepted. Burns' Ind.Stat.Anno. § 63--3003. State ex rel. Calumet National Bank v. McCord (1963), 243 Ind. 626, 633--34, 189 N.E.2d 583.
No matter what view is taken of the remedial statutes, this court does not have jurisdiction of this appeal.
Our Supreme Court said, in the case of City of Plymouth v. Stream Pollution Cont. Bd. (1958), 238 Ind. 439, 445, 151 N.E.2d 626, 629,
'As there is no trial in the usual sense upon the judicial review, there can be no basis for asking for a new trial * * *'
See also: Indiana Alcoholic Bev. Comm. v. B & T Distributors, Inc. (1967), Ind.App., 228 N.E.2d 35.
As the transcript and assignment of errors were not filed with the Clerk of the Supreme and Appellate Courts within ninety days from the date of the judgment of the trial court, appellee's motion to dismiss, heretofore filed in this cause, is well taken.
Even if this court did have jurisdiction of this proceeding, and we specifically hold we do not have such jurisdiction, the transcript of the record before us does not contain a bill of exceptions, signed by the trial judge. The record is further deficient in that it fails to show by order book entry, a file mark, or certificate of the clerk of the Diviess Circuit Court that the bill of exceptions was filed with such clerk.
Supreme Court Rule 2--3 provides that '* * * Every bill of exceptions tendered prior to the filing of the transcript in the appellate tribunal shall, if correct, be signed by the judge and filed with the clerk, which filing may be evidenced by an order book entry or the clerk's certificate. * * *'
The clear provisions of this Rule are mandatory. A document which purports to be a bill of exceptions not signed by the trial judge presents no questions based upon the purported bill. Nutting v. Wilcox (1967), Ind.App., 223 N.E.2d 501.
The principal questions sought to be presented in this appeal require an examination of the bill of exceptions in order to determine 'whether or not the appellant has conformed to the proper procedural methods, and whether its decision is supported by substantial evidence'.
Without the evidence before us we must presume in favor of the findings and judgment of the trial court.
The only assignment of error relied upon by appellant which does not require an examination of the evidence, is the action of the trial court in sustaining appellee's demurrer to appellant's plea in abatement. Appellant's plea alleged improper venue.
We find that the trial court did not err in sustaining appellee's demurrer. It is acknowledged that a plea in abatement is not favored by the courts. The appellant's plea did not meet the statutory requirements imposed by Burns' Ind.Stat.Anno. § 2--1034; and further, did not meet the duty imposed upon it to anticipate and exclude every possibility of venue being in Daviess County.
Appeal dismissed.
I respectfully dissent to the majority opinion in the case at bar.
Burns' 63--1824a provides as follows:
This section went into effect on August 1, 1955.
It is my opinion that this section specifically exempts any action, of which the Board is a party, from the application of the Administrative Adjudication Act.
Provision had already been made by the Legislature for the interpretation give to § 63--1824a by the majority. Under the Administrative Adjudication Act, § 63--3024, it is provided that:
'The provisions of this act shall not apply to the proceedings for the issuance of licenses or permits on application but the proceeding for such license or permit by such proceedings shall be under the provisions of the law relating to the particular agency, * * *.'
The above provisions went into force on January 1, 1948. It seems as though the majority opinion places a redundant interpretation on § 63--1824a.
In the alternative, assuming the majority is correct in its interpretation, I still cannot agree with the result it reaches.
Under the majority opinion, once the cause moves from the administrative board to the courts, the Administrative Adjudication Act applies.
It appears that appellee has followed the appeal provisions of the Beauty Culture Law in prosecuting his appeal from the Board. Under the Beauty Culture Law, appellee had 30 days within which time to appeal to the Circuit or Superior Court of its residence, by posting a One Hundred Dollar ($100.00) bond with the clerk of said court. Appellee, in the case at bar, did so, on February 11, 1966, following the decision of the Board, rendered on January 21, 1966.
Under the provisions of the Administrative Adjudication Act, appellee would have had to have filed his appeal within fifteen (15) days from the date of the receipt of notice of the Board's action. Failure to comply with the fifteen (15) day period terminates all rights to judicial review. Also, appellee states that the appeal is governed by the Beauty Culture Law in his petition for review filed in the Daviess Circuit Court.
As a result of the foregoing, I am of the opinion that appellee is judicially estopped from raising this question in this court. Under Vol. 31 C.J.S. Estoppel § 117b, p. 625, the basis of judicial estoppel is said to be not strictly one of estoppel, but that it:
'* * * partakes rather of positive rules of procedure based on manifest justice and, to a greater or lesser degree, on considerations of the orderliness regularity and expedition of litigation.' And, further in § 118, p. 628, it is said:
'The doctrine of estoppel to assume inconsistent positions in the course of the same judicial proceeding is variously applied, and precludes a person from seeking a benefit under a particular statute and in the same proceeding assailing the statute * * *.'
'A party who has taken a position with regard to procedure, which has been acted or relied on by his adversary or by the court, is estopped to take an inconsistent position with respect to the same matter, in the same proceeding, to his adversary's prejudice.'
I am of the opinion that injustice is inherent in the action of the majority in dismissing the action on this basis.
It is obvious that all parties below knew that they were operating under the Beauty Culture Law. I am of the opinion that to allow the appellee to assert a position below, using the Beauty Culture Law as his basis, and then allowing him to successfully maintain a motion to dismiss an appeal, because the appellant has also used that act, is unconscionable and unjust.
Appellee filed an application with appellant Board for a license to operate a beauty school in Washington, Indiana. The appellant Board held a hearing on the application on December 15, 1965, and on January 21, 1966, denied the same. Following this action by the Board, appellee filed an appeal in the Diviess Circuit Court, which court, after a review of the...
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