Moore v. Spann

• Decision Date: 18 July 1973
• Docket Number: Nos. 172A38,172A39,s. 172A38
• Citation: 157 Ind.App. 33,298 N.E.2d 490
• Parties: Evelyn M. MOORE, Appellant (Plaintiff below), v. Crawford Lee SPANN, Appellee (Defendant below). Victoria SMITH, Appellant (Plaintiff below), v. William D. BOLDEN, Appellee (Defendant below).
• Court: Indiana Appellate Court

Page 490

298 N.E.2d 490

157 Ind.App. 33

Evelyn M. MOORE, Appellant (Plaintiff below), v. Crawford Lee SPANN, Appellee (Defendant below).

Victoria SMITH, Appellant (Plaintiff below), v. William D. BOLDEN, Appellee (Defendant below).

Nos. 172A38, 172A39.

Court of Appeals of Indiana, Second district.

July 18, 1973.

David F. Shadel, Indianapolis, for appellants

BUCHANAN, Presiding Judge.

CASE SUMMARY

This is an attempted consolidated appeal wherein Petitioners-Appellants Evelyn M. Moore and Victoria Smith seek reversal of denial by the trial court of their Petitions To Proceed As Poor Persons in paternity actions filed by them, but failed to include in the Record a certified copy of the Motion to Correct Errors filed in the trial court.

We dismiss.

FACTS

The unchallenged facts appear to be:

The Appellants are unmarried women seeking to file paternity complaints in the Marion County Juvenile Court against Spann and Bolden as the alleged fathers of their minor children. The mothers have received no support or financial assistance from the putative fathers, but each has received public welfare in the form of Aid To Dependent Children from the Marion County Department of Public Welfare and contend they are living on a 'deficit budget,' i.e., the Welfare Department does not pay the full amount of the family's budgeted needs.

Alleging lack of funds to pay the filing fee of.$7.00, they filed Motions For Leave To Proceed As Poor Persons.

Following a hearing, these Motions were denied by the Marion County Juvenile Court on December 21, 1971. The Appellants then apparently filed Motions To Correct Errors, which were subsequently denied.

The Record of the Proceedings in each case contains a Statement of Case, a Statement of the Evidence, and a statement of the issues relied upon in connection with the appeal and was prepared in accordance with Rule AP. 7.2(A) (3)(c). The Records do not contain certified copies of the Motions To Correct Errors which were filed and denied on February 10, 1972, nor is the substance thereof included. The Statement of Case in each case does reflect that the Motion To Correct Errors filed on February 10, 1972 was denied the same day by an Order reading:

'The Court having considered plaintiff's Motion To Correct Errors hereby DENIES plaintiff's Motion To Correct Errors filed on February 10, 1972.'

Neither the Motion To Correct Errors itself nor the substance thereof is set forth in Appellants' Briefs, which rely on a statement of issues without reference to The Records of the Proceedings in these consolidated cases are substantially the same and are treated alike for purposes of this appeal.

whether these issues were or were not included in the Motion To Correct Errors.

Appellants filed a Motion To Proceed As Poor Persons and for waiver of filing fees and court costs in this court; and upon a prima facie showing that Appellants were poor persons this court entered an Order on January 31, 1972 authorizing the Clerk of this court to allow filing and docketing of all proper documents relating to this appeal without the payment of any filing fee.

Although service of all pleadings was made upon the putative fathers and upon the Indiana Attorney General and corporation counsel for the City of Indianapolis, no pleading, brief, or response has been filed in opposition to the relief sought by the Appellants. No oral argument was requested.

ISSUE

Examination of the Record of the Proceedings compels resolution of this limited issue:

Must this appeal be dismissed because a certified copy of the Motion To Correct Errors was not included as required by Rule AP. 7.2(A)(1)?

Because we raise this issue sua sponte, the brief filed by the Appellants, while replete with cognet argument and authorities relating to the merits of their cause, is inapplicable to the discussion that follows.

DECISION

CONCLUSION--It is our opinion that this appeal must be dismissed because the Appellants failed to include a certified copy of the Motion To Correct Errors in the Record as required by Rule AP. 7.2(A)(1) and 7.2(A)(1)(a) and Rule TR. 59(G).

Appellate practice in Indiana prior to the adoption of the Indiana Rules of Trial Procedure effective January 1, 1970 and the Rules of Appellate Procedure effective January 1, 1972 was characterized by a generally recognized fixed procedure familiar to the legal profession for many years.

An appellant filed a motion for a new trial with the trial court after judgment was entered and the appellate process began after the overruling of that motion. The party seeking the appeal was required to include an assignment of errors in the Record indicating each and every error relied on in the appeal.

This was in conformity with the assignment of errors specified by what was then known as Supreme Court Rule 2--6, which, in part, provided:

'RULE 2--6. ASSIGNMENTS OF ERRORS AND CROSS-ERRORS.--There shall be attached to the front of the transcript, immediately following the index, a specific assignment of the errors relied upon by the appellant in which each specification of error shall be complete and separately numbered . . .

'. . .

'In all cases in which a motion for a new trial is the appropriate procedure preliminary to an appeal, such motion shall be filed and shall separately specify as grounds therefor each error relied upon however and whenever arising up to the time of filing of such motion, and an assignment of error on appeal to the effect that the trial court erred in overruling said motion shall be the only means of raising said asserted errors on appeal. In all other cases and in cases of asserted errors arising subsequent to the filing of the motion for a new trial, such asserted errors may be assigned independently.'

The assignment of errors constituted the appellant's complaint on appeal. Brown v Harding, (1965) 136 Ind.App. 678, 204 N.E.2d 680; Stamm v. Price, (1963) 134 Ind.App. 566, 189 N.E.2d 837; Haney v. Denny's Estate, (1962) 135 Ind.App. 317, 183 N.E.2d 346, 193 N.E.2d 648; Indiana Construction Material Co. v. Gelopulos, (1961) 131 Ind.App. 494, 172 N.E.2d 72.

Because the assignment of errors was the appellant's complaint on appeal, the inclusion of an assignment of errors in the Record was deemed a jurisdictional act. Therefore, failure to include an assignment of errors in the Record required dismissal of the appeal for lack of jurisdiction, even though a motion for a new trial (the predecessor to the motion to correct errors) had been timely filed with the trial court. Stamm v. Price, supra; Graue v. Brown, (1961) 131 Ind.App. 435, 171 N.E.2d 705; Bolden v. State, (1956) 235 Ind. 695, 131 N.E.2d 301; Davis v. Pelley, (1952) 230 Ind. 248, 102 N.E.2d 910; Flanagan, Wiltrout and Hamilton, Indiana Trial and Appellate Practice, §§ 2381 and 2382, at 151--152 (West 1952).

Typical of this entrenched practice is Stamm v. Price, supra, in which the Appellate Court had this to say about failure to include the assignment of errors in the Record:

'It is the general rule of law that the assignment of errors constitutes the appellant's complaint in this court. Our Supreme Court has stated in substance, it is a requisite to any appeal, and without a proper assignment of errors no jurisdiction is conferred upon the appellate tribunal. See Graue v. Brown (1961), 131 Ind.App. 435, 171 N.E.2d 705; Bolden v. State (1956), 233 Ind. 695, 131 N.E.2d 301; Davis v. Pelley (1952), 230 Ind. 248, 251, 102 N.E.2d 910. See, also, Flanagan, Wiltrout and Hamilton's, Indiana Trial and Appellate Practice, § 2381, and authorities cited therein.

'It appearing from the record that we lack jurisdiction because of the appellant's failure to file his assignment of errors as provided by Rule 2--6, this appeal is dismissed.'

There can be no doubt, then, that inclusion of an assignment of errors in the Record was the complaint on appeal and failure to include it in the Record deprived the reviewing court of jurisdiction, notwithstanding the fact that a motion for a new trial was timely filed with the trial court.

This, then, was the state of affairs in Indiana appellate practice with respect to the fundamental requirement of an assignment of errors in the Record when the Trial and Appellate Rules were revised in 1970 and 1972.

At that time substantial changes were wrought by the adoption of the new Rules, but such changes in no way did violence to the principle that an assignment of errors in the Record is a jurisdictional requirement for appellate review.

As Dean Harvey and Professor Townsend comment in Volume 4, Indiana Practice, § 59.7, at 133 (West 1971):

'Rule 59(G) continues the prior practice found in former Supreme Court Rule 2--6, of requiring the filing of a Motion to Correct Errors as a condition precedent to an appeal.'

That the motion to correct errors fills the office of the assignment of errors under our former procedure is made certain by the mandatory language of Rule AP. 7.2(A)(1)(a), which states:

'(a) In all appeals from a final judgment, a certified copy of the motion to correct errors filed with the trial court shall constitute for all purposes the assignment of errors. No assignment of error other than the motion to correct errors shall be included in the record.' (Emphasis supplied.)

Rule AP. 7.2(A) also provides:

'(A) Definition. The record of the proceedings shall...