Muniz v. U.S.
| Decision Date | 05 March 1959 |
| Docket Number | No. 18935,18935 |
| Parties | Joseph M. MUNIZ, Liquidation Trustee of Howard Profit-Sharing Liquidation Trust, Appellant, v. UNITED STATES of America, Charles A. Mickle, Receiver of Cabinet Craft Corporation, Cabinet Craft Corporation, City of Attica, Indiana, Appellees. |
| Court | Indiana Appellate Court |
White & White, Covington, Fansler, Fauvre, Dongus & Chambers, Indianapolis, for appellant.
Don A. Tabbert, U. S. Dist. Atty., Philip R. Melangton, Jr., Asst. U. S. Atty., Indianapolis, for appellees.
The record before us reveals that the appellees' petition for a rehearing of this appeal was filed on the last day permissible under the Rules of the Supreme Court of Indiana. On the same day, a copy thereof was mailed to counsel for the appellant and received by them the following day.
The appellant herein has filed a motion to dismiss the appellees' petition for rehearing averring that the appellees failed to comply with Rule 2-13 of our Supreme Court.
The appellee in his brief in opposition to the appellant's motion to dismiss the petition for rehearing avers, 'Since the copies' (the petition for rehearing) 'mailed to appellant were postmarked as of January 20, 1959', (the last day under the rule to file said petition for rehearing)
It is the appellees' contention that Rule 2-15A of the Supreme Court should apply and that since Rule 2-15A, which was adopted on June 26, 1956, effective September 1, 1956, being subsequent to this court's ruling in the case of Matlaw Corp. v. War Damage Corp., 1953, 123 Ind.App. 593, 112 N.E.2d 233, 868, the same being the authority relied on by the appellant to support his motion to dismiss, is not controlling for the reason that this court, in the case of Matlaw Corp. v. War Damage Corp., supra, stated that no distinction could be drawn between a brief and a petition for rehearing with reference to the time for serving.
We are unable to agree with the appellees' contention for the following reasons:
It is apparent from a review of our authorities and the Supreme Court Rules that formerly no notice of the filing of a petition for a rehearing was necessary. See Hanley v. Mason, 1908, 42 Ind.App. 312, 85 N.E. 381, 732. Rule 2-13 of the Supreme Court, prior to 1943, provided that:
'Notice to the party affected shall be given of all motions and petitions, except petitions for rehearing * * *.' (Our emphasis.)
In 1943, this rule was changed so as to eliminate the exception as to petitions for rehearing. The present rule reads, as follows:
'Within the time allowed for filing motions and petitions, and briefs in support thereof, copies shall be served upon the parties affected, or their attorneys of record, and proof of such service shall be made at the time of filing or promptly thereafter.' (Our emphasis.)
Rule 2-13 has been held to apply to petitions for rehearings, as well as the brief filed in support thereof, and a failure to comply therewith requires a dismissal of the petition. Matlaw Corp. v. War Damage Corp., supra; Norling v. Bailey, 1951, 121 Ind.App. 457, 462, 463, 98 N.E.2d 513, 99 N.E.2d 439.
Our court stated in the case of Matlaw Corp. v. War Damage Corp., supra, that:
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