Lipinski v. Town of Chesterton
| Decision Date | 30 March 1970 |
| Docket Number | No. 170A6,170A6 |
| Citation | 256 N.E.2d 580 |
| Parties | Thomas LIPINSKI v. TOWN OF CHESTERTON. |
| Court | Indiana Appellate Court |
Opinion Superseded, 270 N.E.2d 738.
George Cohan and Sheldon H. Cohan, Gary, for appellant.
William Andersen, Jr., Chesterton, for appellee.
On January 9, 1970, this Court entered its Order herein extending the time within which to file the transcript and assignment of errors in this cause to and including January 30, 1970.
Subsequently, on January 30, 1970, the appellant mailed said transcript and assignment of errors from Gary, Indiana, to the Clerk of the Supreme and Appellate Courts, as evidenced by the January 30, 1970 postmark on the envelope in which it was mailed to the Clerk. The appellant has also mailed an 'Affidavit of Filing' in which it is alleged that appellant's attorney filed the Record of the Proceedings with the Clerk of the Appellate Court by depositing the same in the United States mail, on January 30, 1970, certified mail, properly addressed to the Clerk.
The transcript was received by the Clerk on February 2, 1970. The Clerk has affixed thereon his 'received' stamp rather than his 'filed' stamp.
This Court has consistently held that unless the transcript and assignment of errors is filed in the office of the Clerk of the Supreme and Appellate Courts within the time allowed, there is no cause pending in the appellate tribunal and the case will be dismissed. The filing of the transcript and assignment of errors within the time allowed has been held to be a jurisdictional act. Wiltrout, Indiana Practice, Vol. 3, p. 252, § 2471, and cases cited.
Filing the transcript has been held to mean filing in the office of the Clerk of the Supreme and Appellate Courts. Rodgers v. Rodgers (1965), Ind.App., 207 N.E.2d 654, 655; State v. Hendricks Superior Court (1964), Ind., 201 N.E.2d 697, 699.
Appellate Rule 3 of the Indiana Rules of Procedure requires that the record of the proceedings must be filed with the Clerk of the Supreme and Appellate Courts within 90 days from the date of the judgment.
We are aware that Appellate Rule 12(C) entitled 'Method of filing and serving motions, petitions, briefs and other papers', provides that such will be deemed to be filed with the Clerk or served on the opposing party upon the deposit of the same in the United States mail. We do not construe this section to include the transcript of the record and assignment of errors. We take this section to include such motions, petitions, briefs and other papers as may be filed after the action is commenced and pending in this Court.
It thus appearing that the appellant did not cause his transcript and assignment of errors to be actually filed in the office of the Clerk on or before January 30, 1970, either by bringing the same to the Clerk's office or by mailing it sufficiently in advance that it would have been received on or before January 30, 1970, this Court does not have jurisdiction of this appeal. Because of the failure of the appellant to comply with Appellate Rule 3 of the Indiana Rules of Procedure and to perfect this appeal within the time allowed, no question is presented to this Court for decision, and the Court now on its own motion dismisses this appeal, costs vs. appellant.
I respectfully dissent from the majority opinion for the reason that I believe Appellate Rule 12(C) requires us to deem a transcript of the record to have been 'filed with the clerk * * * upon the...
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Murphy v. Indiana Harbor Belt R. Co.
...N.E.2d 738 (1972), our Supreme Court overruled a dismissal of an appeal by this court. For the opinion and dissent of this court see 256 N.E.2d 580 (1971). Our Supreme Court in Lipinski again took a position consistent with a dissent written in this court by Judge White and concurred in by ......
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Lipinski v. Town of Chesterton
...filed in the Appellate Court. That court dismissed the appeal for the stated reason that the transcript had been filed late. See 256 N.E.2d 580. Upon a petition for rehearing in the Appellate Court the court was enenly divided. The cause was, therefore, transferred to this Court for determi......