Louisville, New Albany and Chicago Railway Company v. Carmon

• Decision Date: 17 June 1898
• Docket Number: 2,219
• Citation: 50 N.E. 893,20 Ind.App. 479
• Parties: LOUISVILLE, NEW ALBANY AND CHICAGO RAILWAY COMPANY v. CARMON
• Court: Indiana Appellate Court

50 N.E. 893

20 Ind.App. 479

LOUISVILLE, NEW ALBANY AND CHICAGO RAILWAY COMPANY v. CARMON

No. 2,219

Court of Appeals of Indiana

June 17, 1898

20 Ind.App. 471.At 479.

Original Opinion of January 6, 1898, Reported at: 20 Ind.App. 471.

Petition overruled.

OPINION

ON PETITION FOR REHEARING.

WILEY J.

Appellee has filed what purports to be a petition for a rehearing.The paper so filed is indorsed as follows: "Appellee's motion and brief for a rehearing."The paper filed, in our judgment, is nothing more than an additional argument on the merits of the case.The motion and brief are one and the same thing, and in the beginning it is said: "The appellee in the above entitled cause moves the court for a rehearing in said case, and in support thereof assigns the following reasons: We believe that the court committed an error in reversing the judgment of the lower court."This is the only reason assigned for a rehearing, and appellee's brief on the motion immediately follows.True a petition for a rehearing, and brief in support thereof may be presented together under our practice, although the particular points upon which the rehearing is asked, must be stated in the petition.Elliott's Appellate Procedure section 555;Fertich v. Michener,111 Ind. 472, 11 N.E. 605.

Among other things, rule thirty-six of this court provides: "Rehearing must be applied for by petition in writing, setting forth the cause for which the judgment is supposed to be erroneous."Section 662, Horner'sR. S. 1897, provides that within sixty days after a case has been determined in the Supreme Court, either party may file a petition for a rehearing, etc.Rule thirty-seven of the Supreme Court is identical on the question of a petition for a rehearing as rule thirty-six of this court, and the statute and rule have frequently been construed by that court.It will be observed that both the statute and the rule contemplate the filing of a petition, and the rule provides that the petition shall set forth the "cause for which the judgment is supposed to be erroneous."A petition for a rehearing is a pleading, under the rules of appellate procedure, and must be so regarded by the courts.Baltimore, etc., R. W. Co. v. Conoyer,149 Ind. 524, 48 N.E. 352.In this case no distinct or separate petition for a rehearing has been filed, but appellee has contented himself by filing a brief, and asks the court to grant him a rehearing because the court committed an error in reversing the judgment of the lower court.

In his Appellate Procedure, Judge Elliott, sec. 555, says: "The office of a petition for a rehearing is to specifically present points for the consideration of the court.A general statement that the court erred in the conclusions asserted in its opinion is insufficient.The petition should state what conclusions counsel suppose to be erroneous, * * * the particular points must be stated in a petition.General statements will be unavailing, and assertions cannot supply the place of argument and authorities."In Goodwin v. Goodwin,48 Ind. 584, the court said: "The office of a petition for a rehearing is not to request the court generally to re-examine the questions in the record, or all the questions decided against the party filing it, but it is to point out particularly the errors the court is supposed to have committed in the decision which it has made."See, also, Western Union Telegraph Co. v. Hamilton,50 Ind. 181;Fertich v. Michener,111 Ind. 472, 11 N.E. 605.In Baltimore, etc., R. W. Co. v. Conoyer, supra,the court said: "A petition for a rehearing, under the rules of appellate procedure, is a pleading, and not a mere argument or brief, as is the paper in this case which is denominated a petition."

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