Stephens v. Review Bd. of Indiana Employment Sec. Division

• Decision Date: 17 March 1965
• Docket Number: No. 20253,20253
• Parties: William H. STEPHENS, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, Douglas J. Morris, David R. Oliver, and Oscar Alvord, as Members of and as constituting the Review Board of the Indiana Employment Security Division, and Delco Remy Division, General Motors Corporation, Appellees.
• Court: Indiana Appellate Court

Page 164

205 N.E.2d 164

137 Ind.App. 84

William H. STEPHENS, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION Douglas J. Morris, David R. Oliver, and Oscar Alvord, as Members of and as constituting the Review Board of the Indiana Employment Security Division, and Delco Remy Division, General Motors Corporation, Appellees.

No. 20253.

Appellate Court of Indiana, In Banc.

March 17, 1965.

[137 INDAPP 85]

John R. Walsh, Richard E. Kreegar, Anderson, for appellant.

Edwin K. Steers, Atty. Gen. of Indiana, Keith Campbell, Deputy Atty. Gen., for appellee Review Board.

Eugene C. Miller, Jr., Indianapolis, for appellee Delco Remy Division, General Motors Corporation; Barnes, Hickam, Pantzer & Boyd, Indianapolis, of counsel.

PER CURIAM.

This cause is before us on a motion to dismiss of appellee, Delco Remy Division, General Motors Corporation. Appellant filed his transcript and assignment of errors in this court on August 15, 1964, in compliance with Rule 2-2 of the Supreme Court, 1964 Revision. On September 10, 1964, appellant filed his petition for an extension of time to file brief, and thereafter filed his brief in this court on [137 INDAPP 86] October 29, 1964. Appellee, Delco Remy Division, General Motors Corporation, urges dismissal of this appeal on two grounds. 1) That appellant failed to serve notice and a copy of such petition for extension of time on appellee, Delco Remy Division, General Motors Corporation, or its counsel, as required by Rules 2-13 and 2-16 of the Supreme Court; and, 2) that appellant failed to serve a copy of his brief on appellee, Delco Remy Division, General Motors Corporation, or its counsel, at the time of, or prior to, filing of the same with the clerk of this court on October 29, 1964, as required by Rules 2-13 and 2-19 of the Supreme Court. The record discloses that no proof of service of either the brief or petition for extension of time showing service on appellee, Delco Remy Division, General Motors Corporation, has been filed, although a copy of each was served on appellee, Review Board and the Attorney General, and proof of such service duly made.

Rule 2-16, supra, provides, in pertinent part, as follows:

'Notice of the application and a copy of the petition shall be served upon the opposite party or his counsel at any time before filing, and proof of service shall be filed with the petition.'

Rule 2-19, supra, provides, in pertinent part, as follows:

'Nine (9) copies of each brief shall be filed, together with proof of service of a copy upon the opposing party or his counsel.'

The above cited portion of Rule 2-16, supra, is mandatory. State v. Baker, Silver (1963) 243 Ind. 635, 638, 189 N.E.2d 580.

[137 INDAPP 87] Rule 2-19, supra, requires that service should be made on each of the opposing parties or their counsel and not just one of them. State v. Baker, Silver, supra; F. W. & H., Ind. Tr. & App.Pract., Sec. 2674, Comment 1, p. 298.

It is well established in Indiana that Rule 2-19, supra, and Rule 2-15A require service of a copy of the brief, either in person or by depositing such brief in the United States mail, or with the Railway Express Agency, Inc., prior to or on the date the same is filed with the clerk of this court, and failure to so do results in dismissal of the appeal. In re Estate of Bauer et al. v. Bauer et al. (1963) 244 Ind. 363, 192 N.E.2d 734; James C. Curtis & Co. v. Emmerling (1941) 218 Ind. 172, 31 N.E.2d 57, 31 N.E.2d 986; Monroe v. Review Bd. of Ind. Emp. Sec. Div. (1963) 135 Ind.App. 257, 193 N.E.2d 260; Dawson v. Review Board, Inc. Emp. Sec. Div. (1961) 132 Ind.App. 1, 175 N.E.2d 35; Ind. Tr. & Savings Banks, Exr., etc. v. Zapp (1955) 126 Ind.App. 92, 130 N.E.2d 329.

The Supreme Court in In re Estate of Bauer et al. v. Bauer et al., supra, at page 366 of 244 Ind., page 735 of 192 N.E.2d held:

'Rule 2-15A providing for the filing of briefs and serving opposing counsel by depositing the same in the United States Mail or Railway Express Agency, Inc., does not alter the requirement that the opposing party be served (either personally or by depositing in the mail or express) within the time allowed for filing briefs.'

Appellant's failure to serve notice of the application and a copy of his petition for extension of time to file brief upon appellee, Delco Remy Division, General Motors...