Thonert v. Daenell, 770A119

Decision Date25 November 1970
Docket NumberNo. 770A119,770A119
Citation263 N.E.2d 749,148 Ind.App. 70,23 Ind.Dec. 564
PartiesRichard THONERT and Frances Thonert, Appellant, v. Joseph J. DAENELL and Connie L. Daenell, Appellees.
CourtIndiana Appellate Court

James P. Dunn, Fort Wayne, for appellants.

David C. Peebles, Peters & Peebles, Fort Wayne, for appellees.



This matter is before us on the appellees' Motion to Dismiss or Affirm. Appellees allege in their motion various defects in the transcript of the record and in the appellants' brief. The critical alleged defect concerning the transcript is that it does not contain a certified copy of the motion to correct errors nor of any other papers, for the reason that the clerk's certificates are without a seal.

We have examined the clerk's certificate and find it does not bear the seal of the Court. It is a fundamental principal that it is the certificate of the clerk which gives verity to the transcript and, consequently, the form of the certificate is of utmost importance. It has long been held that no question is presented on appeal if the clerk's certificate does not bear the seal of the Court, even though the certificate is signed by the clerk. Without the seal, the transcript is ineffective for any purpose. Wiltrout, Indiana Practice, Vol. 3, § 2343(2), and cases cited. 2 I.L.E. Appeals, § 315, and cases cited.

It is the duty of the attorney to examine the certificate of the clerk, as well as the transcript the clerk has prepared, to make certain that the certificate is in correct form and properly executed, and that all matters requested in the praecipe are contained in the transcript.

Other alleged defects in the transcript are that the marginal notes are handwritten and illegible, the lines of each page are not numbered, the name of the Appellate Court of Indiana is not correctly stated in the caption, the name of the trial court is not correctly stated, the names of the trial judge and counsel for appellees are misstated, and the paper upon which the transcript is prepared is not of the size required by the rule. While none of these defects alone is sufficient to warrant dismissal of the appeal or affirmance of the trial court's judgment, nonetheless, the total work product does not evidence careful attention to, or compliance with the rules, or even a good faith effort to comply.

We further note that the transcript fails to comply with the provisions of Appellate Rule 7.2 in that the motion to correct errors is not separately certified, and it does not appear at the beginning of the transcript. While we do not read Appellate Rule 7.2(A)(2) to require each paper filed in the trial court to be separately certified, we do read Appellate Rule 7.2(A)(1) and (A) (1)(a) to require that the motion to correct errors must be separately certified. The balance of the record may be certified by one certificate of the clerk at the end of the record, as was done under our former practice. While the language of the rule is not clear as to its requirements, we believe this interpretation is reasonable and workable.

Since a certified copy of the motion to correct errors now takes the place in the transcript of the assignment of errors under the former practice, we are of the opinion that the certified copy of the motion to correct errors should appear in the transcript immediately following the table of contents. This opinion is supported by the fact that in Rule 7.2(A)(1), the first item enumerated is a certified copy of the motion to correct errors. As a practical matter, it is an aid to the Court to have the motion to correct errors positioned in the front of the transcript in order to be readily available for reference without having to search for it in the body of the transcript. The motion to correct errors need not be included a second time in the transcript after the judgment entry.

Turning now to a consideration of the appellants' brief, we note at once that it was not prepared in a neat and workmanlike manner. The first page of the brief alone contains 32 instances of misspellings, strike-overs and mistakes in grammar. The next page contains 15 such mistakes. The next page, 19, and so on through the remainder of the brief, rendering the brief exceedingly difficult to read.

The appellants' brief fails to set forth in the statement of the case any of the record. The Complaint, or even a summary thereof, is not set out, so that we cannot determine from the brief alone, the nature of the action in the trial court. No part of the motion for summary judgment nor any of the affidavits have been set out, or summarized. The judgment is not set out verbatim.

The brief fails to comply with Appellate Rule 8.3(A)(7) in that each error in the motion to correct errors...

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8 cases
  • Smith v. Chesapeake & Ohio R. Co.
    • United States
    • Indiana Appellate Court
    • May 30, 1974
    ...since appellant's Motion to Correct Errors is not separately certified. However, appellee's reliance upon Thonert v. Daenell (1970), 148 Ind.App. 70, 263 N.E.2d 749, in support of this proposition is misplaced. In State Board of Tax Commissioners v. Associated Auto & Truck Rental, Inc. (197......
  • Nyers v. Gruber
    • United States
    • Indiana Appellate Court
    • December 1, 1971
    ...the beginning of the transcript, but complain that it is buried within the last few pages thereof and cite the case of Thonert v. Daenell (1970), Ind.App., 263 N.E.2d 749. The Thonert case was, in part, overruled in the case of State Board of Tax Commissioners v. Associated Auto & Truck Ren......
  • Anderson v. Indiana State Employees' Appeals Commission
    • United States
    • Indiana Appellate Court
    • March 24, 1977
    ...considering the brief alone and independently from the record, can intelligently consider each question presented. Thonert v. Daenell (1970), 148 Ind.App. 70, 263 N.E.2d 749. The argument section of appellant's brief contains many instances of innuendo, accusation, speculation and conjectur......
  • National Bank & Trust Co. of South Bend v. Moody Ford, Inc., 1070A170
    • United States
    • Indiana Appellate Court
    • October 12, 1971
    ...wherein we held that the requirement for a separate certification of the motion to correct errors as stated by Thonert v. Daenell (1970), Ind.App., 263 N.E.2d 749, 23 Ind.Dec. 564, is expressly Judgment reversed with instructions to enter judgment consistent with this opinion. SHARP, STATON......
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