Ross v. Apple

• Decision Date: 21 November 1968
• Docket Number: No. 268A16,No. 2,268A16,2
• Citation: 143 Ind.App. 357,241 N.E.2d 872
• Parties: John S. ROSS, Appellant, v. Robert G. APPLE, d/b/a Sheridan Airport, Appellee
• Court: Indiana Appellate Court

Page 872

241 N.E.2d 872

143 Ind.App. 357

John S. ROSS, Appellant, v. Robert G. APPLE, d/b/a Sheridan Airport, Appellee.

No. 268A16.

Appellate Court of Indiana, Division No. 2.

Nov. 21, 1968.

Earl C. Townsend, Jr., John F. Townsend, John F. Townsend, Jr., Indianapolis for appellant; Townsend & Townsend, Indianapolis, of counsel.

Harry A. Wilson, Jr., Howard J. DeTrude, Jr., Indianapolis, for appellee; Kightlinger Young, Gray & Hudson, Indianapolis, of counsel.

ON PETITION FOR REHEARING

BIERLY, Judge.

The initial appeal of this case was decided on October 10, 1968; see Ross v. Apple, d/b/a Sheridan Airport, (1968), Ind.App., 240 N.E.2d 825.

Thereafter, on October 28, 1968, appellee filed his petition for rehearing. No brief of supporting argument accompanied said petition. On November 4, 1968, the appellant filed a motion to dismiss petition for rehearing and a brief in support thereof. In his brief opposing appellee's petition, appellant cities Sosa v. Young Flying Service (1967), 277 F.Supp. 554 (S.D., Texas, as additional authority in support of our original opinion.

Appellee's petition contains lengthy quotations from our opinion, citations of authority and arguments of law. Rule 2--22 of the Supreme Court of Indiana says:

'Application for a rehearing of any cause shall be made by petition, separate from the briefs, signed by counsel, and filed with the clerk within twenty (20) days from rendition of the decision, stating concisely the reasons why the decision is thought to be erroneous. Such application may, if desired, be supported by briefs, but such briefs will not be received after the time allowed for filing the petition. Parties opposing the rehearing may file briefs within ten (10) days after the filing of the petition.' (Emphasis supplied).

This court has consistently held that the commingling of argument with a petition for rehearing is a sufficient ground for dismissing the petition for failure to conform to Rule 2--22. This rule of form has been restated in numerous reported cases; See: Dorweiler et al. v. Sinks (1958), 238 Ind. 368, 151 N.E.2d 142; Automobile Underwriters, Incorporated v. Smith (1960), 131 Ind.App. 454, 166 N.E.2d 341, 167 N.E.2d 882, transfer denied 241 Ind. 302, 171 N.E.2d 823; In re Estate of McClain et al. v. McClain (1962), 133 Ind.App. 645, 183 N.E.2d 842, 184 N.E.2d 281, rehearing denied 184 N.E.2d 281; Haas v. Rathburn (1965), Ind.App., 206 N.E.2d 389; Kleinknecht v. City of Evansville (1965), Ind.App., 206 N.E.2d 886; Lakes v. Moore (1965), Ind.App., 207 N.E.2d 846; and Custer v. Mayfield (1965), Ind.App., 207 N.E.2d 221. For a very recent restatement of this rule, see: Barkey v. Schermerhorn (1968), Ind.App., 241 N.E.2d 82. In an earlier case, our Supreme Court held that reasons for an erroneous decision contained within a petition for rehearing which are not stated concisely and separately from the argument are to be ignored; Miller, etc. v. Ortman, etc., et al. (1956), 235 Ind. 641, 136 N.E.2d 17. (Emphasis supplied).

In denying transfer in the case of Automobile Underwriters, Incorporated v. Smith, supra, the Supreme Court set out Rule 2--22 in its entirety, and commented that:

'Under the above rule, alleged errors in the opinion, which are assigned as cause or grounds for rehearing, must be supported by a statement which concisely states 'the reasons why the decision is thought to be erroneous.' Rule 2--22. The rule contemplates that, in this manner, the court shall be aided in its consideration of the petition. Consistent with the purpose of the rule, alleged errors in the opinion, not supported by a concise statement of the reasons in support thereof, are considered waived. However, it is not necessary, as stated in the Dorweiler case, supra, that such reasons be supported by argument. In any event, however, if such reasons cannot be concisely stated, and it is considered that extensive argument in support of alleged errors in the opinion is desired, such argument must be submitted separate from the petition.' (Their emphasis).

In Haas v. Rathburn, supra, appellees filed their petition for rehearing. Appellants filed a motion to dismiss said petition for rehearing on the ground that said petition failed to comply with the provision of Rule 2--22 of the Supreme Court in that:

"Application for a rehearing of any cause shall be made by petition, separate from the briefs * * * stating concisely the reasons why the decision is thought to be erroneous." (Their emphasis).

Smith, J., speaking for our court (Bierly, P.J., Hunter and Mote, JJ. concur), citing Automobile Underwriters, Incorporated v. Smith, supra, dismissed said petition for rehearing, stating as follows:

'* * * we are forced to hold that appellees' petition for rehearing does not comply with Rule 2--22 and presents no ground for a rehearing. The appellants' motion to dismiss appellees' petition for rehearing is granted.

'Petition for...