Murphy v. Indiana Harbor Belt R. Co.

• Decision Date: 21 June 1972
• Docket Number: No. 1271A250,1271A250
• Citation: 152 Ind.App. 455,284 N.E.2d 84
• Parties: Florence MURPHY, as Administratrix of the Estate of Thomas E. Chizk, Deceased, Appellant, v. INDIANA HARBOR BELT RAILROAD COMPANY, Appellee.
• Court: Indiana Appellate Court

Page 84

284 N.E.2d 84

152 Ind.App. 455

Florence MURPHY, as Administratrix of the Estate of Thomas

E. Chizk, Deceased, Appellant, v. INDIANA HARBOR BELT RAILROAD COMPANY, Appellee.

No. 1271A250.

Court of Appeals of Indiana, Third District.

June 21, 1972.

Saul I. Ruman, Hammond, for appellant.

Harold Abrahamson, Hammond, for appellee.

SHARP, Judge.

The Appellee has moved to dismiss this appeal alleging noncompliance with AP. Rule 12(B) in regard to the service of the Appellant's brief upon counsel for the Appellee.

This court had extended the time for filing the Appellant's brief to and including May 22, 1972. On May 22, 1972, the Appellant's brief was filed with the Clerk of this Court by depositing the same in the United States mail in accord with the Appellate Rules. Service of a copy of the Appellant's brief was made on counsel for the Appellee at the latter's office in Hammond, Indiana, on May 23, 1972. In an affidavit filed herein it is asserted that the preparation of the Appellant's brief was not completed until after office hours on May 22, 1972, and that the same was delivered personally to the office of Appellee's counsel in Hammond, Indiana, on May 23, 1972.

The Appellant's brief was filed with the Clerk under the provisions of Appellate Rule 12(C) which states:

'Motions, petitions, briefs, the record of proceedings, and other papers will be deemed filed with the clerk or served upon the opposing party or his counsel upon the deposit of the same in the United States Mail or with any properly bonded carrier, charges prepaid, properly addressed, to the clerk or to the opposing party or his counsel as the case may be.'

There is no question that the filing of Appellant's brief with the Clerk of this Court was in accord with the rules and timely.

There have been numerous judicial expressions in regard to the philosophy and spirit of the rules of Civil Procedure, including the Appellate Rules, which became effective in Indiana on January 1, 1970. A recent expression of such opinion is American States Insurance Company v. State of Indiana ex rel. Jennings, Ind., 283 N.E.2d 529 (decided June 8, 1972), in which Justice Hunter speaking for a unanimous Supreme Court stated:

'Although our procedural rules are extremely important, it must be kept in mind that they are merely a means for achieving the ultimate end of orderly and speedy justice. We must examine our technical rules closely when it appears that invoking them would defeat justice; otherwise we become slaves to the technicalities themselves and they acquire the position of being the ends instead of the means. This is especially true in a case such as the one at bar where we prejudice no one by allowing the record to be corrected at this point.

Our new rules of procedure recognize this distinction between the necessity for an orderly presentation and processing of appeals and the 'rigid adherence to a rule of procedure which (merely) perpetuates and compounds an acknowledged factual inaccuracy.' American States Ins. Co. v. State ex rel. Jennings (1971) Ind.App., 273 N.E.2d 306, 309 (dissenting opinion).

As was so aptly stated in the dissenting opinion to the denial of the Petition for Rehearing:

While rules of procedure are necessary to provide stability in the conduct of litigation and in appeals therefrom, we should not permit ourselves to be bound up in the letter of those rules that we loss sight of their spirit. Our function is to serve the truth and to decide legal issues, not clear our dockets by utilization of unnecessarily narrow technical interpretations."

American States Insurance Co. v. State ex rel. Jennings (1971), Ind.App., 273 N.E.2d 306, 310 (dissenting opinion).

Thus, our Supreme Court has unanimously adopted the above words written in dissent by Judge Sullivan and concurred in by three other judges of this court. Likewise, in Lipinski v. Town of Chesterton, Ind., 270 N.E.2d 738 (1972), our Supreme Court overruled a dismissal of an appeal by this court. For the opinion and dissent of this court see 256 N.E.2d 580 (1971). Our Supreme Court in Lipinski again took a position consistent with a dissent written in this court by Judge White and concurred in by two other judges. In Lipinski our Supreme Court took a broad and liberal view of Appellate Rule 12(C).

A similar result may be found in Brotherhood's Relief and Compensation Fund v. Smith, Inc.App., 267 N.E.2d 187 (1971), in which this court had originally dismissed the appeal because of the alleged failure of Appellant's brief to comply with the Appellate Rules. Our Supreme Court, by order, remanded the case for a determination on the merits. These facts are outlined in a footnote found at 275 N.E.2d 867 (1971).

For a further recent statement by our Supreme Court on the spirit and interpretation of the new rule demanding that cases be decided on their merits where possible see State v. Heslar, Ind., 277 N.E.2d 796 (1972).

Also, it is important to note the contents of State ex rel. American Reclamation & Refining Co. v. Klatte, Ind., 270 N.E.2d 872 (1971), in which our Supreme Court held that, although appellee's brief was not timely filed with the Clerk or served on opposing counsel, the court had, and exercised, discretionary power to consider appellee's brief.

There emerges from these recent actions and statements by our Supreme Court a discernable message to resolve the doubts in favor of deciding cases on their merits.

In addition to the...