McClain's Estate v. McClain, 19502

• Decision Date: 13 August 1962
• Docket Number: No. 1,No. 19502,19502,1
• Citation: 133 Ind.App. 645,184 N.E.2d 281
• Parties: In the Matter of the ESTATE of John F. McCLAIN, Deceased, Samuel McClain and Ross McClain, Co-Administrators, Thomas G. McClain, Appellants, v. Helen Bonta McCLAIN, Appellee
• Court: Indiana Appellate Court

Page 281

184 N.E.2d 281

133 Ind.App. 645

In the Matter of the ESTATE of John F. McCLAIN, Deceased,

Samuel McClain and Ross McClain, Co-Administrators, Thomas G. McClain, Appellants, v. Helen Bonta McCLAIN, Appellee.

No. 19502.

Appellate Court of Indiana, Division No. 1.

Aug. 13, 1962.

John O. Campbell, Richard E. Sisson, Marion, for appellants, H. D. Nesbitt, Charles & Tobin, Campbell, Gemmill & Browne, Torrance & Sisson, Marion, of counsel.

Cole, Wildman & Cole, Russell J. Wildman, Peru, for appellee.

AX, Judge.

Appellee filed within time a petition designated as a 'Petition for Rehearing.' Within ten days thereafter appellants filed their motion, together with a separate brief, asking that said petition for rehearing be dismissed for failure to comply with Rule 2-22 of the Supreme Court. This rule reads as follows:

'Rehearings. Application for a rehearing of any cause shall be made by petition, separate from the briefs, signed by counsel, and filed with the clerk within 20 days from rendition of the decision, stating concisely the reasons why the decision is thought to be erroneous. Such application may, if desired, be supported by briefs, but such briefs will not be received after the time allowed for filing the petition. Parties opposing the rehearing may file briefs within 10 days after the filing of the petition.'

As a part of said petition, appellee has sought to combine her brief with the statement of reasons for rehearing in that said petition makes reference to the briefs filed by the parties hereto and contains argument of stated propositions and citations of various authorities to support the propositions, all under one cover without the filing of a separate brief in support of appellee's petition. Although this petition contains but three propositions, claiming error of this court in its opinion, nevertheless appellee has utilized four and one-half pages in arguing these various propositions, none of which concisely states the reasons why the decision of this court is thought to be erroneous.

It has been held by our courts that a petition for rehearing must conform to the aforesaid Rule 2-22 and that it must not be an argumentative brief. See Guthrie v. Blakely et al. (1956), 127 Ind.App. 119, 130 N.E.2d 62, 131 N.E.2d 357; Maryland Casualty Co., etc. v. Weiss (1958), 129 Ind.App. 481, 156 N.E.2d 644, 157 N.E.2d 840.

We are cognizant of the still apparent confusion that exists among the members of the legal profession in interpreting this Rule 2-22. In Automobile Underwriters, Inc. v. Smith (1960), 131 Ind.App. 454, 167 N.E.2d 882, on petition for rehearing, this court attempted at that time to obtain clarification of Rule 2-22, and it was in answer to that opinion that the Supreme Court speaking through Judge Achor, in Automobile Underwriters, Inc. v. Smith (1961), 241 Ind. 302, 171 N.E.2d 823, 825, in attempting to clarify Rule 2-22, stated:

'Under the above rule, alleged errors in the opinion, which are...