Willsey v. Hartman, 1069A171

• Decision Date: 06 May 1971
• Docket Number: No. 1069A171,1069A171
• Citation: 269 N.E.2d 172,149 Ind.App. 5
• Court: Indiana Appellate Court
• Parties: Delbert E. WILLSEY d/b/a Delbert E. Willsey Construction Co. et al., Appellants, v. Robert Dailey HARTMAN et al., Appellees.

Page 172

269 N.E.2d 172

149 Ind.App. 5

Delbert E. WILLSEY d/b/a Delbert E. Willsey Construction Co.

et al., Appellants,

v.

Robert Dailey HARTMAN et al., Appellees.

No. 1069A171.

Appellate Court of Indiana, In Banc.

May 6, 1971.

Elmon M. Williams, Greenwood, Paul V. Wycoff, Batesville, Frank I. Hamilton, Greensburg, for appellants.

John D. Raikos, Indianapolis, Don H. Wickens, Greensburg, for appellees.

SHARP, Judge.

It is elementary that the primary function of this court is to determine cases on the merits where possible. It should not be necessary to cite extensive authority for this proposition. In this case, however, it is necessary to elaborate on this general proposition and specifically in terms of the issues presented by the Appellees' Motion to Dismiss. It should also be elementary that any doubts should be resolved in favor of deciding cases on their merits, for, after all, that's what we are here for.

In speaking of the proposed Federal Rules of Civil Procedure more than 35 years ago Chief Justice Hughes stated:

'It is manifest that the goal we seek is a simplified practice which will strip procedure of unnecessary forms, technicalities and distinctions, and permit the advance of causes to the decision of their merits with a minimum of procedural encumbrances.' 21 ABA Journal 340, 341 (1935).

There is a well developed body of case law in Indiana by both the Supreme and Appellate Courts which were reflective of the general attitude expressed by Chief Justice Hughes before the advent of the new Indiana Rules of Procedure which became effective January 1, 1970.

In Miller v. Ortman, 235 Ind. 641, 649, 136 N.E.2d 17, 23 (1956), our Supreme Court said:

'Under the circumstances presented, was it proper for the Appellate Court to refuse to consider the petition for rehearing because of appellant's failure to file his petition and briefs under separate cover, even though certain of the grounds relied upon for rehearing are clearly and concisely stated in rhetorical form separate from the argument in support thereof? In answering this, we are confronted with these considerations: * * * (2) the declared policy of both the legislature and our courts is to liberally construe our rules of procedure to the end that, where possible, litigants may have their cases determined upon the merits.

Under the circumstances presented, we are of the opinion that we should be guided by the test as to whether appellant has made a good-faitheffort to comply with the rule.'

In Wylie v. Myers, 238 Ind. 385, 387, 150 N.E.2d 887, 888 (1958), our Supreme Court stated:

'At the outset appellee challenged the sufficiency of the appellant's briefs to present any issue for the reason that in form it does not comply with the requirements of Rule 2--17(e).

In support of his position, appellee cites the cases of Scott v. Pandell (et al.) (1954), 124 Ind.App. 474, 476, 118 N.E.2d 372; Kruzick v. Kruzick (et al.) (1954), 124 Ind.App. 365, 368, 118 N.E.2d 376, in which cases the Appellate Court categorically held that if propositions, points and authorities, such as were required under the old rule, were included in the appellant's brief, they would not be considered. The rule was amended for the reason that under it both appellants and appellees were so bound by its rigid requirements that in many instances neither could most effectively present or meet the basic issues involved. Thus the rule operated to the disadvantage of the parties, the attorney and the court. The amendment was made to enable both parties to give greater consideration of the substance and less to the sterotype form of the argument.'

Likewise, in Capp v. Lindenberg, 242 Ind. 423, 426, 178 N.E.2d 736, 737 (1961), where our Supreme Court stated:

'* * * Appellees contend that an appeal which is not supported by a brief which substantially conforms to the requirements of Rule 2--17A presents no issue and therefore that compliance with Rule 2--17A is jurisdictional. In support of this contention appellees cite and rely upon the case of Allison v. State (1959), 239 Ind. 545, 546, 547, 157 N.E.2d 193, 194, as being controlling of the specific issue with which we are here confronted. Appellees assert that in that case this court considered that compliance with Rule 2--17A was jurisdictional. Appellees further assert that because this court has determined the jurisdictional character of Rule 2--17A, and because this court has stated that it is bound by its own rules, it is without authority now to permit the appellant to amend his brief after the time for filing briefs had expired.

* * * However, notwithstanding the motion which directly challenged the jurisdiction of the court and thus made the question of jurisdiction the primary issue, this court noted that appellant had not 'at any time herein attempted to amend such brief to correct the deficiency,' by providing the required statement regarding the jurisdiction of the court. Therefore, this court held: 'Appellant has waived any right he may have to a consideration of this appeal by this Court by failing to make an affirmative showing of our jurisdiction in his original brief (or by amendment thereto) as above required.' Therefore, upon motion of the appellees, the cause was dismissed.

However, this court did not hold in the Allison case, supra, as contended by appellant, that compliance with Rule 2--17A was jurisdictional. On the contrary, the decision rests first upon the fact that jurisdiction was the primary substantive issue and that when the question of jurisdiction was challenged by the appellees appellant made no attempt to correct the defect in his brief by stating the fact of this court's jurisdiction. Under the above circumstances it did not appear that the appellant had made a good faith effort to comply with the rules of this court in the prosecution of his appeal. Therefore, upon motion of the appellees, the case was dismissed.

However, in this case, in contrast to the Allison case, the appellant promptly filed a motion to amend his brief when his attention was called to the fact that he had failed to include therein the statement regarding the jurisdiction of the court as required by the rule here under consideration. Therefore, the Allison case provides no precedent in this case.

Under circumstances where the rule, itself, does not provide that compliance therewith is jurisdictional, or where this court has not heretofore held that the subject matter of the rule is jurisdictional, this court is reluctant to ascribe a jurisdictional character to its rules. Where the rule has not already been declared to be jurisdictional, the court may, under a liberal construction thereof, in its discretion and upon proper application, permit the appellant to amend his brief so as to conform with the requirements of the rules of this court.

For the reasons above stated, we permitted the appellant, after the filing of an appropriate motion, to amend his brief so as to conform with the requirements of Rule 2--17A.'

Our Supreme Court also reached a similar result on similar reasoning in Deckard v. Adams, 246 Ind. 123, 203 N.E.2d 303 (1965).

Judge Wiltrout sets forth several maxims, which should always be our touchstones, in Volume 3, Indiana Practice, § 2115, where it is stated:

'The appellate courts are committed to the policy of attempting to decide all cases upon their merits whenever possible, with increasing regard for the substance and diminishing regard for the form. It is the policy to decide appeals on the merits whenever possible, rather than on procedural questions. To that end it is the policy to place a liberal construction upon the Rules.'

There are many recent cases from this court interpreting the old rules consistent with the general proposition set forth in the above cited authorities. In Lloyd v. Weimert, Ind.App., 257 N.E.2d 851, 854 (1970), Judge Cooper, speaking for this court, stated:

'This court realizes that the Supreme Court Rules have the force and effect of law and are binding on the court and litigants alike, Hayes v. Pennick (1965) 137 Ind.App. 55, 204 N.E.2d 882; Eggers v. Wright et al. (1969) Ind., 245 N.E.2d 331, and should, in the interest of clarity, efficiency, and justice, be complied with. However, this court perfers, whenever possible, to consider a case on its merits, rather than on mere technicalities. Miller, etc. v. Ortman, etc., et al. (1956) 235 Ind. 641, 136 N.E.2d 17 (Reh. Den.); Capp v. Lindenberg, etc., et al. (1961) 242 Ind. 423, 178 N.E.2d 736 (Reh. Den.); Burton v. Rock Road Construction Co. (1968) 142 Ind.App. 458, 235 N.E.2d 210 (Tr. Den.); Hopple et al. v. Star City Elevator Co., Inc., et al. (1967) 140 Ind.App. 561, 224 N.E.2d 321 (Tr. Den).

In the case before us, we find several procedural errors. While this court can find ample authority to support a dismissal, we feel that in light of the new Indiana Rules of Procedure, a more liberal approach to procedural errors should be taken where possible. * * *'

Likewise, in Fairwood Bluffs Conservancy District v. Imel, Ind.App., 255 N.E.2d 674, 678 (1970), Judge Sullivan, speaking for this court, stated:

'By reason of the well-established principle that we will, whenever possible, dispose of appeals upon their merits we will not further discuss appellees' contentions concerning the failure of appellants' brief to include the appellees' complaint in this case. The deficiency alleged by appellees to exist in appellants' brief is provided by appellees' brief itself. Further, under the new rules of procedure, such technical niceties will not present the problem, or work the inequity, that strict application of the old rules has sometimes done.

Appellate Rule 8.3(A) of the new Indiana Rules of Civil Procedure which supplants Rule 2--17 dispenses with this problem * * *'

Appellees' next contention is that neither appellants' motion for new trial nor its substance is contained in the summary of the record. This...