State Bd. of Tax Com'rs v. Stanley

• Decision Date: 17 November 1952
• Docket Number: No. 18281,18281
• Citation: 108 N.E.2d 624,231 Ind. 338
• Parties: STATE BOARD OF TAX COM'RS et al. v. STANLEY et al.
• Court: Indiana Supreme Court

Page 624

108 N.E.2d 624

231 Ind. 338

STATE BOARD OF TAX COM'RS et al. v. STANLEY et al.

No. 18281.

Supreme Court of Indiana.

Nov. 17, 1952.

J. Emmett McManamon, Atty. Gen. and Walter O. Lewis, Deputy Atty. Gen. for appellants, Oliver Zeiher, of counsel.

A. B. Chipman and Roy Sheneman, Plymouth, for appellees.

EMMERT, Judge.

In our opinion the petition to transfer here does not raise any adequate ground for transfer on the merits of the issues decided by the Appellate Court. 105 N.E.2d 830, and 106 N.E.2d 812. The petition does assert as a ground for transfer under Rule 2-23(4)(c) that the Appellate Court failed to give a statement in writing of each substantial question arising on the record and the decision of the court thereon. This brings into consideration the effect of a petition for rehearing in the Appellate Court.

'If, in disposing of the case on appeal, the court fails to give express or full consideration to questions presented, the remedy of the complaining party is by petition for a rehearing.' Stevens v. Templeton, 1910, 174 Ind. 129, 131, 91 N.E. 563, 564. 'The petition should ask a rehearing only on points that were properly presented for decision at the first hearing, and were overlooked or improperly decided.' Kilgallen v. State, 1921, 192 Ind. 531, 546, 132 N.E. 682, 137 N.E. 178. Rule 2-23 only grants the right to a transfer 'within 20 days after a petition for rehearing has been denied.' Our court has held that if a petition to transfer fails to disclose that a petition for rehearing in the Appellate Court was denied, no question is presented upon the merits of the Appellate Court opinion. See our per curiam opinion as reported in Steel Construction Co. v. Rossville Alcohol & Chemical Co., 1938, 105 Ind.App. 520, 523, 12 N.E.2d 987, 16 N.E.2d 698. It is obvious that the Appellate Court should have an opportunity to correct its own omissions or errors by having the same called to its attention in a petition for rehearing. The petition for rehearing in this appeal only alleged errors in the decision on the merits. No reference therein was made to the failure of the Appellate Court to decide questions of jurisdiction or contentions as to what was properly in the record. We are not required to consider specifications of error in a petition for transfer which were not presented to the Appellate Court first in a petition for rehearing. However, the petition does present a matter of appellate procedure which we deem of sufficient importance to justify clarification in denying the transfer.

On December 12, 1951, which was within the ninety day period for perfecting the appeal under Rule 2-2, appellants filed their petition for an extension of time to file transcript and assignment of errors, and on this petition the Appellate Court granted to and including February 4, 1952, to perfect the appeal. However, the record here fails to show any notice given to appellees of the filing of this petition as required by Rule 2-2. ¹ Appellees assert the requirement of notice is jurisdictional, and that the Appellate Court should have dismissed the appeal for want of jurisdiction.

It is well settled that the failure to perfect an appeal within time deprives the court of jurisdiction of the subject matter appealed, and the court on its own motion should dismiss the appeal. Vail v. Page, 1911, 175 Ind. 126, 130, 93 N.E. 705, and cases therein cited. See also Johns v. State, 1949, 227 Ind. 737, 89 N.E.2d 281. But in this case there was an extension of time...