Indiana Personnel Bd. v. Parkman, 20675

• Citation: 223 N.E.2d 352,140 Ind.App. 308,10 Ind.Dec. 17
• Decision Date: 08 February 1967
• Docket Number: No. 20675,20675
• Parties: INDIANA PERSONNEL BOARD, Appellant, v. Ira PARKMAN, Appellee.
• Court: Indiana Appellate Court

Page 352

223 N.E.2d 352

140 Ind.App. 308

INDIANA PERSONNEL BOARD, Appellant, v. Ira PARKMAN, Appellee.

No. 20675.

Appellate Court of Indiana, In Banc.

Feb. 8, 1967.

Dissenting Opinion Feb. 10, 1967.

John J. Dillon, Atty. Gen., Douglas B. McFadden, Deputy Atty. Gen., for appellant.

Isadore D. Rosenfeld, South Bend, Alvin D. Blieden, Michigan City, for appellee.

BIERLY, Judge.

1. The Appellant, on November 21, 1966, filed a Petition for Time to File Transcript and Assignment of Errors. Affidavit of mailing was filed.

2. Appellant, on November 21, 1966, was granted time to and including February 14, 1966, to file Transcript and Assignment of Errors.

3. Appellee, on November 28, 1966, filed a Motion to Dismiss Appeal. Notice given, and Brief in Support of said motion filed.

4. Appellant filed Brief in Response to Motion to Dismiss on December 1, 1966. Affidavit of mailing filed.

5. Appellee filed, on December 6, 1966, a Reply Brief to Appellant's Brief in Response to Motion to Dismiss.

6. Appellant, by counsel, on January 18, 1967, filed 'Additional Authorities to Response to Motion to Dismiss', which additional authorities to motion to dismiss are in the following words and figures, to wit:

'Appellant, by counsel, urges the court consider the additional authorities which dispose of appellee's Motion to Dismiss Act 1965, Ch. 374, § 1, p. 1164, Burns Ind. Stat.Ann. § 49--1937, providing:

"Whenever any such action, counter-claim, petition or cross-complaint is filed in any court in this state in which the state of Indiana or any board, bureau, commission, department, division, agency or officer or employee in his capacity as an employee of the state of Indiana is a party and the attorney-general is required or authorized to appear or defend, or when the attorney-general is entitled to be heard, a copy of the complaint, cross-complaint, petition, bill or pleading shall be served on the attorney-general, and such action, cross-action or proceeding shall not be deemed to be commenced as to the state or any such board, bureau, commission, department, division, agency or officer or employee in his capacity as an employee of the state of Indiana until such service. Whenever the attorney-general has appeared in any suit, action or proceeding, copies of all motions, demurrers, petitions and pleadings filed therein shall be served upon the attorney-general by the party filing the same; Provided, further, That the Clerk of the court shall cause to be served upon the attorney-general a copy of the ruling made by the court upon such motions, demurrers, petitions and pleadings, and such ruling shall not be deemed effective in any manner as against the attorney-general or as against the state of Indiana or any board, bureau, commission, department, division, agency, or officer or employee in his capacity as an employee of the state of Indiana unless and until said copy shall be served upon the attorney-general or any deputy attorney-general as provided in section 2 of this act: Provided, further, That in any action in which the attorney-general is required or authorized to appear or defend or entitled to be heard, in which action some matter or thing occurs upon which occurrence time begins to run, the running of such time shall be superseded as to the attorney-general until such service is had upon the attorney-general or any deputy attorney-general as provided in section 2 of this act: Provided, further, That whenever any claim filed for and on behalf of the state of Indiana or any board, bureau, commission, department, division, agency, officer or institution of the state of Indiana in any estate or guardianship pending in any court having probated jurisdiction in the state of Indiana is not allowed and the clerk of the court, administrator, administratrix, executor, executrix or guardian transfers such claim to the trial docket said claim shall not be disposed of nor shall any disposition made of such claim be deemed to be a final adjudication unless and until due notice of the trial date of such claim shall be served on the attorney-general or any deputy attorney-general as provided in section 2 of this act as least ten (10) days prior to the date set for trial of said claim.'

"SEC. 2. Whereas an emergency exists for the immediate taking effect of this act, the same shall be in full force and effect from and after its passage.' (Emphasis added.)

'Acts 1945, ch. 3, § 2, p. 7, Burns Ind.Stat.Ann. § 49--1938, providing:

"Whenever service on the attorney-general is required by this act such service may be made by handing it to the attorney-general or any deputy attorney-general or by mailing the same to the attorney-general by registered mail return receipt requested.'

'Since the clerk of the Superior Court never caused a copy of the court's ruling on the motion for new trial to be served on the attorney general as required by Burns § 49--1937, nor was there service by handing a copy to 'the attorney-general or any deputy attorney-general or by mailing the same to the attorney-general by registered mail receipt requested', appellant's appeal was not filed late and appellee's motion to dismiss should be overruled.

Respectfully submitted,

JOHN J. DILLON

Attorney General of Indiana

(Signed) Douglas B. McFadden

Deputy Attorney General

Attorneys for Appellant'

Proof of Service was filed on said date of January 18, 1967.

Appellee, Ira Parkman, filed an action in the Marion Superior Court, No. 1, to review the decision of the Indiana State Personnel Board upholding the discharge for cause of the said Parkman as Administrator of the Hospital at the Indiana State Prison.

Appellant, thereupon, filed a Petition for Prohibition in the Supreme Court which petition was denied. Thence, the Marion Superior Court No. 1, reassumed jurisdiction of the cause, notwithstanding objections by the appellant, and held a trial de novo as authorized by § 60--1350, Burns' Ind.Stat.Ann., 1961 Repl. The court rendered its decision and judgment on August 5, 1966, finding and decreeing that Parkman was dismissed without cause; that he be reinstated as Hospital Administrator of the Indiana State Prison, and that Parkman be reimbursed for all salary and wages from the date of April 10, 1964.

On the 15th day of August, 1966, appellant filed a motion for a new trial which was overruled on the 17th day of August, 1966. On August 18, 1966, the clerk of the Marion Superior Court, No. 1, mailed by U.S. Mail, a postcard notifying appellant of the action of the court in overruling its motion for a new trial. A copy of said postcard is as follows:

Appellant appealed the decision and judgment of the court in overruing the motion for a new trial.

Where this court to consider the mailing of a postcard by the clerk of the Marion Superior Court, No. 1, in overruling of defendant's Motion for a New Trial filed August 15, 1966, or should a notice of such act of the court have been unnecessary as alleged by plaintiff-appellee in his brief in support of the Motion to Dismiss, we would have no alternative but to conclude that this court had jurisdiction of the subject matter, the parties to this action, and that said appeal should be dismissed by virtue of Rule 2--2 of the Rules of the Supreme Court.

But we are of the opinion that said notice by postcard was defective and that plaintiff-appellee was charged with giving notice to the attorney-general of the overruling of defendant-appellant's motion for a new trial as prescribed by Burns' § 49--1938, supra, as heretofore quoted and again quoted as follows:

'Whenever service on the attorney-general is required by this act such service may be made by handing it to the attorney-general or any deputy attorney-general or by mailing the same to the attorney-general by registered mail return receipt requested.'

The court now finds that time did not begin to run as against to defendant-appellant from the date of the overruling of defendant-appellant's Motion for a New Trial.

The court further finds that appellant's petition for time within which to file the transcript and assignment of errors was prematurely filed on November 21, 1966, as well as the granting of said petition on said date.

The court further finds that appellee's Motion to Dismiss the appeal was prematurely filed on November 28, 1966.

The court further finds that the entries made in this cause under dates to wit: November 21, 1966, November 28, 1966, should be stricken from the record and that the clerk of the court should be so directed.

The court further finds that the defendant-appellant by filing on January 18, 1967, of 'Appellant's Additional Authorities to Response to Motion to Dismiss' has chargeable knowledge of the overruling of defendant-appellant's Motion for a New Trial, and that time should begin to run as to said defendant-appellant from the date of January 18, 1967.

It is now ordered and decreed by the court that time does not begin to run as against the defendant-appellant at the date of the overruling of defendant-appellant's Motion for a New Trial.

It is further ordered and decreed by the court that defendant-appellant's Petition for Time within which to File Transcript and Assignment of Errors was prematurely filed on November 21, 1966, as also was the granting of said petition by the court on the same date.

It is further ordered and decreed by the court that appellee's Motion to Dismiss the appeal was prematurely filed on said date of November 28, 1966.

It is further ordered and decreed by the court that entries made in this cause on November 21, 1966, November 21, 1966, and November 28, 1966, be stricken from the record and the clerk of this court is hereby directed to strike such entries from the docket.

It is further ordered and decreed by the court that on said date of January 18, 1967, at the time of the filing of appellant's 'Additional Authorities to Response to Motion to Dismiss', the defendant attorney-ge...