Indiana State Personnel Bd. v. Wilson, 271S21

• Decision Date: 26 July 1971
• Docket Number: No. 271S21,271S21
• Citation: 256 Ind. 674,271 N.E.2d 448
• Parties: INDIANA STATE PERSONNEL BOARD et al., Appellants, v. Mamie T. WILSON, Appellee.
• Court: Indiana Supreme Court

Page 448

271 N.E.2d 448

256 Ind. 674

INDIANA STATE PERSONNEL BOARD et al., Appellants, v. Mamie T. WILSON, Appellee.

No. 271S21.

Supreme Court of Indiana.

July 26, 1971.

Theodore L. Sendak, Atty. Gen., William F. Thompson, Asst. Atty. Gen., for appellants

Frank E. Spencer, Indianapolis, for appellee.

PER CURIAM.

This case stems from the lay-off from employment by the Department of Corrections of Mamie T. Wilson, Appellee, a state merit service employee. The Indiana State Personnel Board, having conducted a hearing pursuant to the provisions of the Administrative Adjudication and Court Review Act, Acts of 1947, Chapter 365, ordered that Mamie T. Wilson be reinstated, effective January 1, 1970, to the position of her former employment, and further that she be paid for all of the back wages and benefits which were due her from the last day on the payroll at the Department of Corrections to January 1, 1970,

'minus any monies which she might have earned during this period of time in other employment which will be substantiated by her Federal Income Tax Return.'

On November 4, 1970, after this case had been submitted to the trial court for a review of the said determination by the Indiana State Personnel Board, the Marion Superior Court, Room 5, Honorable Addison Dowling, Judge, entered its special findings of fact and conclusions of law and the following 'Judgment'.

JUDGMENT

'IT IS THEREFORE ORDERED AND ADJUDGED BY THE COURT THAT the decision of the Indiana State Personnel Board made on December 11, 1969, in the appeal of Mamie T. Wilson concerning her lay-off from the Department of Correction, be and the same now herein is ordered vacated and set aside in and to the following extent only: the following provision contained therein, void and of no effect, shall be deleted and set aside, to-wit:

'* * * minus any monies which she might have earned during this period of time in other employment which will be substantiated by her Federal Income Tax Returns.'

and this cause is now herein remanded to the said Indiana State Personnel Board for said limited purpose only, to delete said void provision from its said decision.'

On November 12, 1970, the Indiana State Personnel Board (designated as Appellee in the trial court) filed in the trial court 'Appellee's Notice of Intention to Appeal to the Supreme Court of Indiana', but there was nothing filed to point out to said Court any alleged error which the Indiana State Personnel Board might have claimed was made in the findings of fact, conclusions of law and judgment by the Marion Superior Court, Room 5.

When this cause was appealed to the Supreme Court, the Indiana State Personnel Board filed with said transcript only an 'Assignment of Errors' and 'Brief for Appellants-Defendants.'

Upon the filing of the 'Brief for Appellants-Defendants' and service upon the Attorney for the Appellee, said Appellee filed her 'Motion to Dismiss' and supporting Brief based simply upon the proposition that, although the judgment was rendered on November 4, 1970, by the trial court, there was no motion to correct errors filed in said cause to direct the attention of the trial court to any error as alleged by said Appellant; that the time within which such a motion to correct errors could be filed has elapsed; that the jurisdiction of this Court has not been invoked and that the appeal should be dismissed. The Brief of the Indiana State Personnel Board counters upon the claim that this action was pursuant to the Administrative Adjudication and Court Review Act and that said Act, Burns' 63--3019, IC 1971, 4--22--1--19 specifies in part that:

'No motion for a new trial shall be required or permitted prior to taking such appeal to the Supreme Court of Indiana.'

The Indiana State Personnel Board's Brief then argues that the motion to correct errors serves the same function as the former motion for a new trial and that said statute, in effect, also prohibits the filing of a motion to correct errors.

Reference is made to the case of Bradburn v. County Department of Public Welfare (1971) Ind.App., 266 N.E.2d 805, wherein the Appellate Court of Indiana, on page 806 of 266 N.E.2d stated as follows:

'The motion to correct errors, however, is not limited to those instances where there has been a trial, as was the old motion for a new trial. Under TR. 59(A) the motion to correct errors can present to the trial court almost any conceivable error and can pray for relief suitable to the alleged error. Under the provisions of TR. 59(E) the trial court is empowered to grant any appropriate relief and is not limited to granting a new trial. We must hold in this case, therefore, that the appellant, in failing to file his motion to correct errors in the trial court and in failing to include a certified copy of that motion in the record of the proceedings as his assignment of errors in this Court, has presented nothing for review.

The certified copy of the motion to correct errors as required by Appellate Rule 7.2(A)(1)(a) takes the place of the assignment of errors under our former procedure. The certified copy of the motion to correct errors is the complaint in the appellate tribunal. The timely filing thereof is necessary to give the appellate tribunal jurisdiction of the appeal, and when, as in this instance, the motion is not filed at all, the appeal must be dismissed because the court has no jurisdiction. Wiltrout, Indiana Practice, Vol. 3, § 2381, p. 196; State ex rel. Spelde v. Minker, Trustee, etc. (1963), 244 Ind. 421, 193 N.E.2d 365; Davis et al. v. Pelley (1951), 230 Ind. 248, 102 N.E.2d 910; Stamm v. Price et al. (1963), 134 Ind.App. 566, 189 N.E.2d 837.'

This Court recently denied a petition to transfer the Bradburn case on May 18, 1971, so that said case now stands for the general proposition that a motion to correct errors is required and takes the place of the assignment of errors under the former rules of procedure. However, it is urged that the Bradburn case did not involve the Administrative Adjudication and Court Review Act, and that the statutory procedure prescribed by said Act should prevail in this case, which allegedly requires no motion for new trial or motion to correct errors and in fact prohibits the filing of such. Said Act, however, is the Acts of 1947, Chapter 365 and the particular section involved, Section 19, Burns' 63--3019, was last amended by the Acts of 1957, Chap. 355.

This Court, on July 29, 1969, adopted complete new rules of procedure both for trial and appellate procedure, effective on and after January 1, 1970. In the consideration of such rules, this Court had before it the provisions of the Acts of 1969, Ch. 191, by which the General Assembly purported to adopt the 'Indiana Rules of Civil Procedure.' This Court, in the adoption of its rules of trial procedure, accepted a part of said Ch. 191 of the Acts of 1969, but in many respects rejected the legislative proposal.

One of the areas in which this Court rejected said legislative proposal was in the scope of applicability. As proposed by the Legislature, there would have been an exception as provided in Rule 81 of Ch. 191, Acts of 1969. The said Rule 81 exception, entitled 'Applicability in General', was an attempt to save certain statutory remedies and proceedings...