Sears, Roebuck & Co. v. Hutchens

• Decision Date: 03 July 1973
• Docket Number: No. 773S132,773S132
• Citation: 297 N.E.2d 807,260 Ind. 561
• Parties: SEARS, ROEBUCK AND CO., Appellant, v. Donald HUTCHENS and Naomi Hutchens, Appellees.
• Court: Indiana Supreme Court

Page 807

297 N.E.2d 807

260 Ind. 561

SEARS, ROEBUCK AND CO., Appellant, v. Donald HUTCHENS and Naomi Hutchens, Appellees.

No. 773S132.

Supreme Court of Indiana.

July 3, 1973.

William L. Morris, Rochester, Cadick, Burns, Duck & Neighbours, Indianapolis, for appellant.

Jesse A. Brown, Brown, Brown, Rakestraw, Rochester, for appellees.

ARTERBURN, Chief Justice.

This court considers the petition to transfer only for the limited purpose, set forth in rule AP. 11(B)(2)(d), of indicating that the Court of Appeals in this case correctly followed ruling precedent of the Supreme Court but further to clarify such precedent and to emphasize the absolute necessity, in all cases, of filing the praecipe for the record within thirty (30) days after the ruling of the trial court on the motion to correct errors.

This case is one in which the appellant, Sears, Roebuck and Company, waited until January 17, 1973, which was the last day upon which it must have filed the record of proceedings, to file its Petition for Extension of Time within which to file such record. As required by rule AP. 14(B), that petition stated the date upon which the praecipe was filed with the clerk of the Fulton Circuit Court, being January 16, 1973. This filing date of the praecipe for the record was only one day before the record must have been filed or, in other words, on the 89th day following the ruling on the motion to correct errors. The Court of Appeals properly denied the Petition for Extension of Time because of the provisions of rule AP. 14(B) which states in part:

'Unless the praecipe or written request for the record and transcript was filed within thirty (30) days from the time when the period begins to run within which an appeal may be taken, no extension of time for the preparation of the record and transcript will be granted.'

Furthermore, rule AP. 2(A) states as follows:

'An appeal is initiated by filing with the clerk of the trial court a praecipe designating what is to be included in the record of the proceedings, and that said praecipe shall be filed within thirty (30) days after the court's ruling on the Motion to Correct Errors or the right to appeal will be forfeited. A copy of such praecipe shall be served promptly on the opposing parties.'

The Court of Appeals had no choice but to deny the petition for the extension of time, for the rule states expressly that the right to appeal will be 'forfeited' if the praecipe is not filed within thirty (30) days after the court's ruling on the motion to correct errors.

The present rule of this court (which is also found in the Criminal Rules in rule CR. 11(2)) affects a substantial reduction in the time limitation within which a party must make a determination, as to whether to appeal the trial court's decision. This requirement was adopted by this court because of the flagrant abuse of the previous rule as practiced, this case being a classic example, of waiting until the ninety (90) day period previously provided was about to expire, then filing the praecipe for the record, and then asking for more time to get the record prepared. What had to...