McKinley v. Review Bd. of Indiana Employment Sec. Division

• Decision Date: 05 June 1972
• Docket Number: No. 2,No. 1171A239,1171A239,2
• Parties: Alfred McKINLEY, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION et al., Appellees
• Court: Indiana Appellate Court

Page 395

283 N.E.2d 395

152 Ind.App. 269

Alfred McKINLEY, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION et

al., Appellees.

No. 1171A239.

Court of Appeals of Indiana, Division No. 2.

June 5, 1972.

John T. Manning, Indianapolis, Ronald E. Elberger, for appellant.

Theodore L. Sendak, Atty. Gen., Darrel K. Diamond, Deputy Atty. Gen., for appellees.

ON APPELLEE REVIEW BOARD'S MOTION TO DISMISS

SULLIVAN, Judge.

The matter is before us for judicial review of a decision of the Review Board of the Indiana Employment Security Division. Appellee Board has filed its motion to dismiss asserting that appellant has failed to invoke the jurisdiction of the Court of Appeals because the assignment of errors filed by appellant does not specifically state that the decision of the Board is 'contrary to law.'

The statute pertaining to judicial review of the decisions of the Review Board of the Employment Security Division, IC 1971, 22--4--17--12, Ind.Ann.Stat. § 52--1542k (Burns 1964), provides in part as follows:

'The appellant shall attach to said transcript an assignment of errors. An assignment of errors that the decision of the review board is contrary to law, shall be sufficient to present both the sufficiency of the facts found to sustain the decision, and the sufficiency of the evidence to sustain the findings of facts.' (Emphasis supplied)

We have held heretofore that the only proper assignment of error to invoke the jurisdiction of this court upon application for judicial review of an administrative board's determination is that the decision is 'contrary to law.' La Reau v. Teibel (1956) 127 Ind.App. 92, 138 N.E.2d 153. ¹ The statute in question, however, states only that such an assignment is sufficient to preserve error and to obtain a review upon the merits. It does not state that an assignment of errors in the language of the statute is the only assignment which will invoke the review jurisdiction of the Court of Appeals.

To illustrate the school of thought which reasons that the absence of the 'contrary to law' assignment is fatal to appellate review, we quote from La Reau, supra:

'It does not appear logical nor conducive to proper and understandable appellate procedure that an appellant should be authorized to assign asserted errors in promiscuous and unrestricted fashion. Such authorization could result only in unwieldiness, indefiniteness and uncertainty, and cast upon the court the irksome duty in many cases of endeavoring to unravel diverse, contradictory and oft-times ill-phrased attempted assignments of error. Further, grievous delay in deciding appealed causes would probably become the rule rather than the exception; and the oft-stated legislative intent to provide for the expeditious consideration of compensation cases would be frustrated. It seems more consonant with the indicated holdings of our courts, the acknowledged legislative intent, and efficient appellate procedure to hold that in appeals from the Industrial Board under the provisions of the Workmen's Compensation Act the statutory assignment that the award is contrary to law is the proper and only efficacious assignment of error, and is sufficient to warrant the appropriate presentation in appellant's brief of all asserted propositions of error.'

127 Ind.App. 92, 99, 138 N.E.2d 153, 156.

We retreat from this well-intentioned attempt at appellate efficiency. An assignment of error more specific than that deemed by statute to be merely sufficient, should not divest us of jurisdiction for the mere reason that the magic words 'the decision * * * is contrary to law' are omitted from the assignment. Under no circumstances should specific assertions of error which call the immediate attention of this court to particular alleged errors be cause for rejection of an appeal. If anything, specific error assignment...