Lipinski v. Town of Chesterton
| Decision Date | 21 June 1971 |
| Docket Number | No. 170A6,170A6 |
| Parties | Thomas LIPINSKI, Appellant, v. TOWN OF CHESTERTON, Appellee. |
| Court | Indiana Supreme Court |
George Cohan and Sheldon H. Cohan, Gary, for appellant.
William Andersen, Jr., Chesterton, for appellee.
This cause was originally 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 determination on motion to dismiss. The question arises upon the interpretation of Appellate Rule 12.
The appellant had mailed the transcript of record by certified mail on the last day on which it could be filed under our rules. The record was not received in the Office of the Clerk of the Supreme and Appellate Courts until three days later. The Appellate Court's decision sustaining a motion to dismiss was based upon an interpretation of the former rules which had been held to mean that the transcript must be filed in the Office of the Clerk on or before the date of the expiration of the time allowed. Appellate Rule 3 requires a transcript to be filed in the Office of the Clerk within ninety days from the date of judgment or ruling on the motion to correct errors, whichever is later.
The Appellate Court stated in its opinion that the placing of the transcript in the United States mail certified and with a return receipt requested failed to comply with Appellate Rule 3. However, there is nothing in this rule which defines filing with the Clerk.
The first sentence of Appellate Rule 12(A) reads as follows:
It will be noted from the above sentence that filing is accomplished either by filing with the Clerk in the manner prescribed in subdivision (C) or by personally presenting the papers to the Clerk or a person designated by the Clerk. Appellate Rule 12(C) reads as follows:
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Lipinski v. Town of Chesterton, 170A6
...for appellee. SHARP, Judge. This case is now decided on its merits pursuant to the mandate of our Supreme Court in Lipinski v. Town of Chesterton, Ind., 270 N.E.2d 738 (1971) which overruled the earlier dismissal of this appeal by this Court in Lipinski v. Town of Chesterton, Ind.App., 256 ......
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Murphy v. Indiana Harbor Belt R. Co.
...words written in dissent by Judge Sullivan and concurred in by three other judges of this court. Likewise, in Lipinski v. Town of Chesterton, Ind., 270 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.......