Moore v. Spann, s. 172--A--38

Citation157 Ind.App. 33,302 N.E.2d 825
Decision Date25 October 1973
Docket Number172--A--39,Nos. 172--A--38,s. 172--A--38
PartiesEvelyn M. MOORE, Appellant (Plaintiff below), v. Crawford Lee SPANN, Appellee (Defendant below). Victoria SMITH, Appellant (Plaintiff below), v. William D. BOLDEN, Appellee (Defendant below).
CourtCourt of Appeals of Indiana
David F. Shadel, Legal Services Organization, Indianapolis, for appellants

BUCHANAN, Presiding Judge.

CONCLUSION--The Appellant's Petition for Rehearing is denied.

The appeal of the appellants, Moore and Spann, was dismissed due to their failure to include in the record a certified copy of the Motion to Correct Errors as required by Rule 7.2(A)(1) and 7.2(A)(1)(a) of the Indiana Rules of Appellate Procedure--a jurisdictional defect.

STATEMENT OF PETITIONERS' ARGUMENT

The Petition for Rehearing argues that Rule AP. 7.3 provides for an alternative method of determining what shall be included in the record and is complete in and of itself and independent and distinct from Rule AP. 7.2.

It is true Rule AP. 7.3 contemplates an abbreviated record on appeal where the parties agree as to what constitutes the record for purposes of appeal and the facts and issues presented. A certain procedure is required to perfect the record under these unusual circumstances.

GROUNDS FOR DENIAL

The laudable objective of shortening the record where possible by agreement of the parties should not be discouraged. However, neither can Rule AP. 7.3 be construed to eliminate the fundamental requirement of any appeal, i.e., inclusion of a certified copy of the Motion to Correct Errors or an Assignment of Error (as the case may be).

The record in this case does indicate the issues purportedly before the Trial Court, but does not include the Motion to Correct Errors itself. There is only a reference to the Motion to Correct Errors, thereby leaving us mystified as to its contents.

Our appellate practice is not to be confused with Federal rules of appellate procedure 1 which do not require a designation or assignment of errors on appeal. Indiana appellate practice, now regulated by Appellate Rule 7.2(A)(1) and 7.2(A)(1)(a) and Trial Rule 59(G) on this subject, has traditionally insisted on such a requirement.

Appellant's interpretation of Rule AP. 7.3 is bereft of authority. In effect it reads into the rule specific elimination of the need for a certified copy of the Motion to Correct Errors contrary to the universal requirement of Indiana practice which treats the Motion to Correct Errors as the appellant's complaint on appeal, the inclusion of which in the record is deemed a jurisdictional act. Bradburn v. County Department of Public Welfare, (Ind.App.1971) 266 N.E.2d 805; Indiana State Personnel Board v. Diggs, (Ind.1971) 272 N.E.2d 868; Gray v. State, (Ind.1971) 269 N.E.2d 535; Lashley v. Centerville, (Ind.App.1973) 293 N.E.2d 519; Indiana State Personnel Board v. Wilson, (1971) 256 Ind. 674, 271 N.E.2d 448.

As indicated in our opinion, 298 N.E.2d 490, the principle of inclusion in the Record of a certified copy of the Motion to Correct Errors (or an assignment of errors) is a jurisdictional requirement for appellate review that has been applied to all classes of cases--administrative, civil and criminal.

The fact that the adverse parties to this action in the trial court and to the appeal, chose not to appear and defend is not fatal to appellant's attempt to bring itself within the provisions of Rule AP. 7.3, but their failure to include in the record a certified copy of the Motion to...

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