Means v. Seif Material Handling Co., 2--672A27
| Decision Date | 11 September 1973 |
| Docket Number | No. 2--672A27,2--672A27 |
| Citation | 157 Ind.App. 492,300 N.E.2d 895 |
| Parties | Doris MEANS, as mother and next friend of Howard W. L. Shirley, Jr., Means, Appellant-Plaintiff Below, v. SEIF MATERIAL HANDLING COMPANY, Appellee-Defendant Below, Emma Jean McGee, Howard J. Shirley, Appellees-Plaintiffs Below. |
| Court | Indiana Appellate Court |
Kenneth C. Kern, Kern & Associates, Indianapolis, for appellant.
Larry R. Champion, Tracy & Champion, Indianapolis, David R. Balch, Columbus, Ohio, for Howard J. Shirley.
Charles S. Gleason, Gleason, Woods & Johnson, Indianapolis, for Emma Jean McGee.
This is an attempted appeal from an award of the full Industrial Board of Indiana. The record of the proceedings before the Board was timely filed on November 10, 1972. The case was fully briefed and transmitted to us from the clerk's office on February 6, 1973. We examined the record and failed to find an assignment of errors.
Absent a timely filed assignment of errors we have no jurisdiction to review an award of the Industrial Board. Clary v. National Friction Products, Inc. (1972), Ind., 290 N.E.2d 53, 34 Ind.Dec. 271; same case (1972), Ind.App., 283 N.E.2d 574, 31 Ind.Dec. 270; Slinkard v. Extruded Alloys (1971), Ind.App., 277 N.E.2d 176, 28 Ind.Dec. 619; Rastenburg v. Silver Fountain, Inc. (1973), Ind.App., 295 N.E.2d 371, 36 Ind.Dec. 220. Therefore, on February 22, 1973, we issued the following order:
'Having examined the record herein, and having failed to find therein, or attached thereto, an Assignment of Errors, the Court now finds that the parties should be notified that the cause will be dismissed for want of jurisdiction unless, within twenty days of this date, good cause to the contrary is shown.'
The appellant's response, filed March 14, 1973, tacitly admits that she had not filed an assignment of errors prior thereto. With her response, which is denominated 'Petition to File Omitted Assignment of Errors', she tendered an assignment of errors. An attempt was made to excuse failure timely to file the assignment on the nebulous ground that 'certain staff changes were being made in the office of appellant's attorney's at the time the appeal was being prepared. In effect, this is a petition for an extension of time filed months after the time has expired. Appellate Rule 14(A) requires that '(p)etitions for an extension of time to file papers required to be filed within a prescribed time by these rules must be filed before the expiration of such time . . ..' The statute provides for appeals to this court from awards of the full Industrial Board 'under the same terms and conditions as govern appeals in ordinary civil actions'. IC 1971, 22--3--4--8, Ind.Ann.Stat. § 40--1512 (Burns 1965 Repl.). Appellate Rule 3(B) provides, in pertinent part: 'In all appeals and reviews . . . the record of the proceedings must be filed with the clerk of the Supreme and Appellate Courts within ninety (90) days from the date of the judgment . . ..' AP. 7.2(A) states that the record of the proceedings shall contain an assignment of errors. In this case three timely filed petitions for extensions of time were granted, the last of which extended the time to and including November 10, 1972. Appellant's petition filed March 14, 1973 is therefore four months late. Which is to say it comes to us four months after we have lost jurisdiction (or the possibility of acquiring jurisdiction) to review the award to which appellant objects.
We deeply regret that a technicality has frustrated an appeal. No useful purpose is served by requiring an assignment of errors in an appeal from an award of the Industrial Board. The statute 1 provides, in effect, that an assignment that the award is contrary to law is sufficient to present any error. Such an all encompassing assignment is as helpful as a blank sheet of paper would be. Its filing is merely a ritual whereby an appellant invokes our jurisdiction. Either the Supreme Court or the General Assembly, or both, should abolish it. Until that is done, however, we have no jurisdiction of this case and can do nothing but dismiss it.
Appeal dismissed.
It has been stated and very recently restated that:
Knox County Council v. State ex rel McCormick (1940) 217 Ind. 493, 498, 29 N.E.2d 405, 407; Burrus v. Silhavy (1973 Ind.Ct.App.) 293 N.E.2d 794.
Accordingly, I believe this court to have the inherent power to permit belated civil appeals for good cause shown. In Schilling v. Ritter (1963) 134 Ind.App. 168, 171, 172, 186 N.E.2d 887, 889, the Appellate Court said:
'It is true that this court has inherent power to grant time to perfect and appeal even after the expiration of time allowed by the rules of the Supreme Court, or statute, for sufficient reasons shown (See State ex rel. Thomas v. Elkhart Circuit Ct. (1950), 228 Ind. 572, 94 N.E.2d 485; Flanagan, Wiltrout & Hamilton's Indiana Trial and Appellate Practice, § 2471, p. 193; Lowe, by Next Friend et al. v. Gardner et al. (1959), 129 Ind.App. 527, 158 N.E.2d 808) as the appellant herein maintains in his Memorandum in Support of Petition for Extension of Time; however, this is only done in rare and exceptional cases, such as matters of great public interest, or where extraordinary circumstances exist.'
And in Tourkow v. Hoover (1952) 122 Ind.App. 676, 679--680, 108 N.E.2d 195, 196--197, the court noted:
...
To continue reading
Request your trial