Williamson v. Cazier
| Decision Date | 06 June 1969 |
| Docket Number | No. 269A41,No. 1,269A41,1 |
| Parties | Bill WILLIAMSON, Appellant, v. Wesley L. CAZIER and H. & H. Distributing Company, Inc., Appellees |
| Court | Indiana Appellate Court |
Raymond R. Pyatt, Justin Waitkus, Sackett, Pyatt & Waitkus, Gary, for appellant.
Edmond Leeney, Galvin, Galvin & Leeney, Hammond, for appellees.
This action was filed in the Lake Superior Court, Room 3, sitting at Gary, Lake County, Indiana, by the plaintiff-appellant against the defendants-appellees to recover damages for personal injuries received by the plaintiff, which personal injuries resulted from a collision of his motor vehicle with that of a motor vehicle, which, at the time of the collision, was being operated by one Louise Cordingley at the intersection of Massachusetts Street and Ridge Road in the City of Gary, Indiana. The second paragraph of the complaint alleged that the defendant-appellee, Wesley L. Cazier, at the time of the collision, was operating a truck owned by the defendant-appellee, H. & H. Distributing Co. at said intersection; and charged the said Cazier with certain acts of negligence, namely: that said Cazier signalled to the plaintiff-appellant to cross said intersection from the north side of Ridge Road to the south side thereof without first ascertaining if it was safe for the said plaintiff-appellant to cross said intersection.
The cause of action was later venued to the LaPorte Circuit Court. The defendants-appellees Wesley L. Cazier and H. & H. Distributing Company, Inc. filed a motion for a summary judgment and the trial court, on December 6, 1968, granted said motion and entered a jdugment for the defendants-appellees Wesley L. Cazier and H. & H. Distributing Co.
On February 26, 1969, the appellant filed a petition with this court for an extension of time within which to file a transcript of these proceedings and assignment of errors; and said petition was granted on March 10, 1969, and the time to file said transcript and assignment of errors was extended to April 3, 1969.
Mr. Kendal E. Mathews, Clerk of the Supreme Court, received the following communication from Mr. Justin Waitkus, attorney for appellant:
'SACKETT, PYATT & WAITKUS
Attorneys at Law
Bank of Indiana Bldg.
569 Broadway
GARY, INDIANA
46402
April 3, 1969
Mr. Kendal E. Mathews, Clerk
Appellate Court
State of Indiana
State House
Indianapolis, Indiana 46200
RECEIVED
APR 7 1969
Kendal E. Mathews
Re: Bill Williamson vs. Wesley L. Cazier and H. & .h.
Dear Sir:
Enclosed please find Transcript of the record in the above captioned matter. Would you please enter the Transcript of Record in the Appellate Court under date of April 3, 1969.
I have a Xerox copy of the transcript so it will not be necessary for you to return the transcript to me.
Thank you for your courtesy in this matter.
cc: Mr. Edmond Leeney
Mr. Jon Schmoll'
From an examination of the letter it clearly appears that the letter was mailed at Gary, Indiana on April 3, 1969 and was received by the Clerk of this Court, Mr. Kendal E. Mathews, on April 7, 1969; the transcript and assignment of errors were stamped 'Filed' as of April 3, 1969.
On April 17, 1969 the appellees filed a motion to dismiss this appeal, alleging in substance therein the following:
1. That upon the petition of appellant herein this court entered an order on March 10, 1969, extending the time within which to file transcript and assignment of erros to and including April 3, 1969.
2. That on April 4, 1969, the attorneys for the appellees received a copy of a letter addressed to the clerk of this court, dated April 3, 1969, in which letter the attorney for the appellant requested that the clerk of this court enter transcript of record in the Appellate Court under the date of April 3, 1969.
3. That it appears, therefore, that the transcript and assignment of errors was received by this court after April 3, 1969, and could not have possibly been filed on April 3, 1969.
4. That the appellees pray this court to dismiss this appeal for lack of jurisdiction.
It is the position of the appellees that Rule 2--2 of the Supreme Court of Indiana provides that in all appeals and reviews the assignment of errors and the transcript of the record is required to be filed in the office of the Clerk of the Supreme and Appellate Court within 90 days from the date of the judgment or ruling on the motion for a new trial. However, if within the time for filing the assignment of errors and transcript, as provided in said Rule 2--2, it is made to appear by affidavit filed with the court to which an appeal or review is sought, that it has been and will be impossible to procure a bill of exceptions or transcript and assignment of errors within the time prescribed in Rule 2--2, the court may, in its discretion, grant a reasonable extension of time within which to file such transcript and assignment of errors, in the manner as prescribed in Rule 2--16 of the Supreme Court of Indiana.
The appellees maintain that in this case a timely petition for extension of time to file the transcript and assignment of errors was filed, and on March 10, 1969, this court entered an order extending the time to file transcript and assignment of errors to and including April 3, 1969.
However, it is the position of the appellees that Rule 2--15A of the Supreme Court, which rule reads as follows:
* * *' (Emphasis supplied)
applies only to motions, petitions and briefs, and does not specifically apply to transcripts and assignments of error; and that, under the maxim: 'Expressio Unius Est Exclusio Alterius' only motions, petitions and briefs are included within the import of Rule 2--15A.
In support of this position the appellees cite the case of Gene Rodgers v. Rodgers (1965), 137 Ind.App. 290, 207 N.E.2d 654, in which this court said:
'Appellants having failed to perfect their appeal by filing in the office of the Clerk of the Supreme and Appellate Courts, within the time required under Rule 2--2, supra, and extended by order of this court, appellee's motion to dismiss the appeal should be sustained.'
The appellees further cite the case of McGuire v. Review Board of the Indiana Employment Security Division et al. (1951), 121 Ind.App. 377, 380, 99 N.E.2d 263, 264, in which this court said:
It is further the position of the appellees that the transcript herein was mailed from Gary on April 3, 1969, that the following three days were holidays, and, therefore, the transcript was not received for filing by the clerk of this court until April 7, 1969; and that Rule 2--15A, prior to its amendment in 1964, did not include the words 'motions and petitions'. In Sizemore v. Public Service Commission of Indiana (1962), 242 Ind. 498, 180 N.E.2d 232, and in Muniz v. United States (1958) 129 Ind.App. 433, 155 N.E.2d 140, 156 N.E.2d 641, this court held that the rule does not apply to the filing of motions and petitions, but that it merely supplemented Rule 2--13 as it relates to briefs.
The appellees maintain that if the Supreme Court of the State of Indiana in the adoption of Rule 2--15A intended said rule to encompass assignments of error and transcripts, it would have so stated and provided; and that it would be doing violence to the meaning of words to say that petitions, motions and briefs mean also assignments of error; in other words, do petitions, motions and briefs mean any and all things that by law or rule of court are required to be filed with the clerk?
It is the opinion of this court that the position of the appellees is tenable, and that Rule 2--15A was not intended to and does not include the filing by mail of transcripts and assignments of error. Therefore, it is our opinion that the motion to dismiss filed by the appellees should be sustained, and that this appeal be, and the same is, hereby dismissed. Costs are assessed against the appellant.
The majority opinion correctly, I believe, construes Indiana Supreme Court Rule 2--15A to exclude transcripts and assignments of error. The opinion then concludes that a transcript and assignment of error deposited in the U.S. Mail upon the final day of a time period extension as duly granted by this Court, but not received by the Clerk until someday thereafter is not timely filed. I would agree with that conclusion also if such set of facts were before us.
The simple and unassailable fact is that the Court here attempts to answer questions not presented and totally ignores the central--in truth, the only--issue presented by appellees' Motion to Dismiss. Rule 2--15A is not involved. The sole issue here is whether the bare unsupported allegation of a Motion to Dismiss to the effect that a transcript and assignment of error was not timely filed can overcome evidence of the time of filing as shown by the official indorsement of the Clerk of the Supreme and Appellate Court.
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Feinn v. Ilekis, 668A103
...transcript and assignment of errors could have been filed pursuant to Rule 2--2 of the Supreme Court. In the case of Williamson v. Cazier (1969), Ind.App., 248 N.E.2d 43, this court had this question under consideration, and held that Rule 2--15A of the Supreme Court did not apply to the ma......