State Ex. Rel. Agan v. Hendricks Superior Court, 268S18

• Decision Date: 11 July 1968
• Docket Number: No. 268S18,268S18
• Citation: 238 N.E.2d 446,250 Ind. 675
• Parties: STATE of Indiana on the relation of Mary Alice AGAN, Relator, v. The HENDRICKS SUPERIOR COURT, and J. Gordon Gibbs, Judge of the Hendricks Superior Court, Respondents.
• Court: Indiana Supreme Court

Page 446

238 N.E.2d 446

250 Ind. 675

STATE of Indiana on the relation of Mary Alice AGAN Relator, v. The HENDRICKS SUPERIOR COURT, and J. Gordon Gibbs, Judge of the Hendricks Superior Court, Respondents.

No. 268S18.

Supreme Court of Indiana.

July 11, 1968.

E. Alonzo Deckard, Melvin R. Lind, Ryan, Lind & Deckard, Danville, for relator.

John J. Dillon, Atty.Gen. of Indiana, Charles S. White, Chief Counsel, for appellee.

ORDER

ARTERBURN, Acting Chief Justice.

Petition for rehearing in the above cause denied this 11th day of July, 1968.

LEWIS, C.J., dissenting with opinion.

JACKSON, J., concurs in dissenting opinion. (Prior opinion 235 N.E.2d 458.)

MOTE, J., not participating.

LEWIS, Chief Justice (dissenting).

I must respectfully dissent from the majority opinion of this Court on the Petition for Rehearing. The order book of the respondent court directed the appraisers to file their report on the 27th of November at 1:00 P.M. The appraisal was duly submitted in open court on November 22, 1967. There is no question that the appraisal was accepted and duly filed by the court on the same day. It is also clear that both parties were required by statute to file any exceptions to the report within 10 days of the filing. The state here filed on December 4, 1967, within ten (10) days of the date set by the court for the filing. However, the Court today holds that the 10-day limitation is to be computed from the actual date of filing rather than from the date ordered for filing by the court.

It is recognized that Burns' Indiana Statutes, Anno. (1968 Repl.) Sec. 3-1707a was not complied with by the court in this case and that petitioner did not object to this non-compliance. However, the rationale of that statute is very much in point on this procedural matter. The statute says:

"*** And the court or judge in vacation shall on the return day fixed at the time of the filing of the complaint appoint appraisers as provided by law and fix a day certain within ten days thereof for said appraisers to appear, qualify and file their report of appraisal." (Emphasis supplied.)

It is too obvious for recitation to state the merits of "certainty" in matters where time limits may, and do as here, shape substantive rights. The legislature called for a day certain from which the parties to the litigation may ascertain in advance and with certainty the tolling of the 10-day limit. Without advance notice and clarity, only constant and wasteful surveilance at the court house steps would assure parties and counsel that their filing of exceptions will fall within the 10-day limitation.

It is not disputed that the court speaks by its order book. Cook v. State (1941), 219 Ind. 234, 37 N.E.2d 63, O'Malia v. State (1934) 207 Ind. 308, 192 N.E. 435. The order book here called for the filing of the appraiser's report on November 27, 1967, at...