*1 concur; DeBruler, Prentice, JJ., Arterburn, C.J., Hunter J., participating. not
Note.—Reported E. 38. in 290 N.
Margaret Clary; A. Marlene T. Reinhold Products,
National Friction Inc. Filed December
[No. 1972.] 1272S177. Walker, Indianapolis, appellants. P. Ross Weisell, Reynolds, Jr., Locke, Boyd Locke, & Theodore L. appellee. Indianapolis, for These appeals on pending are before us J. Prentice, having Transfer, been Appellants’ Petition to District, Appeals, in the Court of Second consolidated upon appellee, dismissed that Court motion of opinion appearing thereon N. E. 2d 574. We agreement sustaining action with the of that Court dismiss, entirely motion to but we are not in accord with *2 opinion Appeals its The order thereon. of of and the Court 12,1972 opinion is, hereby aside, its of June therefore, set granted appeals transfer of said enable us rewrite opinion agree. and omit that with which we not do
These appellee’s cases are now before the Court on the motion or giving to dismiss affirm. The to the facts rise cases, motions are the same in each of therefore continue, by Appeals, two cases as consolidated the Court of disposition by opinion. appellants judicial in cases which seek These are negative of of the Full Industrial awards Board Indiana. appellee The has filed motions to dismiss or affirm in both alleging, substance, per- cases not were thirty days Board, within award fected of the Full appellants assignments and that the have failed file of error. of the records of An examination these cases reveals that case, both contentions are each correct. The date Board in each case was 5,1971. Thereafter, November on November 1971 motions errors were filed both cases. denied 7, 1971, on which, motions December after on December appellants praecipes filed their 1971 the for the records. Appeals were filed January Both records Court of on time 1972. No extensions of within which to file the for, petitioned granted and none by records said Court. concerning appeals
The statute from awards of the Full Repl. 1965 Burns 40-1512, Ind. Ann. Stat. § 1971, 22-3-4-8, pertinent part reads in IC as follows: by “An the full award board shall conclusive binding questions (the) fact, as to all party but either dispute may thirty (30) days within the date appeal such award Court for errors of law under the govern appeals terms and same conditions as ordinary (Our emphasis) civil actions.” provides: The statute further “An full errors that award of the
hoard is the the shall be sufficient to sufficiency facts found to sustain the award finding of the evidence sustain the facts.” appellants perfected Because the have not their might by within the allowed or time as time within timely Appeals have been extended the Court of on jurisdiction of petitions, filed that Court did not have Appellants these cases and the same must be dismissed. rely upon Personnel Board the recent cases of Indiana State N. E. Bradburn v. Wilson *3 Department County Public Welfare 387, 266 App. E.N. 2d 805. cases,
In both the Wilson and Bradburn a motion to dismiss appellant the to was sustained because did not file a motion appealing. errors correct in the trial court before appeal Superior The Wilson case was an from the Court County judgment of Marion from that a entered proceeding in court a to a review determination of the State Supreme appellee’s
Personnel Board. The Court sustained the motion to dismiss and concluded that all matters of which a party complains any proceedings in trial in a court be must brought given to the attention of the court and the court be opportunity the to correct its errors. The Bradburn was case appeal Joseph judgment an from the St. Circuit Court and the agreed on an case. The Court sustained the motion appeals to in that dismiss filed case and held in all that from judgment, appealing party a final the must file the trial court motion to a correct errors as a precedent condition appeal. Wilson, swpra, supra, Bradburn, appeals
.Both Although Wilson, dealing from trial courts. we were decision, of an administrative board’s appeal Court it stood as an from In the trial court. Wilson, held a motion we to correct was necessary, procedure the because is established the courts, appeal trial and the from trial court. Trial Rule 59(G), compelled ruling case, which in Wilson the how ever, us, is not cases now before appeals directly true, from Board. This is simply proceeding because before Industrial Board proceeding not a procedure apply. is to which the civil rules of provides govern Trial Rule 1 “the * * all courts of the state of Indiana Nothing purports in the rules to extend them to administrative may boards whom courts be had. pertaining to The statute
states: assignment “An of errors of award of the full board shall be sufficient sufficiency of the facts found to sustain finding the evidence to sustain
facts.” provision no relative to the filing for the of motion the Industrial Board filing errors, of such could not extend time allowed of an of errors in the Court Appeals. agencies
Each administrative several is a creature Legislature. presenting procedures followed in *4 agencies spe- to these and in therefrom are matters cifically pertaining the set out in statutes each. rules to The govern procedure, which, as Trial Rule the of trial stated in practice in all courts of the state of Indiana proceedings are not to before the administrative
585 invoking juris- requisite the agencies to the nor authority. reviewing judicial diction 1970, it procedure of adoption rules of
Before pertaining to provisions statute was held re- construed be must from the Appellate presenting the case in late to the mechanics of saving questions before than to the manner of Court rather (1943), et al. Johnson et al. Russell v. the Industrial Board. E. 2d 219. N. Company Thus, of Cole v. Sheehan Construction in the case 174, we at 274 at 53 N. E. Ind. stated: “* * * thing new motion for a no such as a is assignment of compensation proceeding,
trial in a ‘an but (in full Appellate Court) the award of contrary shall be sufficient board the the facts.’ law sufficiency found to sustain facts finding of sustain the evidence to * * court trial failure of “Under the civil evidence, by should find facts established challenged by found, may motion for have been new trial findings contrary to ground on the * * * compensation error law such an law. But under the by presented assigning award is that the ap- proposition by appropriate based thereon in the emphasis) (Our pellant’s brief.” equally applicable reasoning out above is sound and set Subsequent today arising Board. from the Industrial to cases procedure, adoption of the new Alloys Extruded it case of Slinkard had Court App. 479, which was 277 N. E. 2d (1971), 150 Ind. Board, which the Industrial judicial an award of review of assignment court That of errors. appellant not file an did juris- necessary, order to invoke concluded it was award of the to review an of this Court diction provided for proper error file it stated: *5 provision Pro- “We find no Indiana Rules of Trial Appellate Procedure, as cedure or in the Indiana Rules of they exist, requires the expressly impliedly now or filing a Motion before to Correct Errors filing necessity Board or court which eliminates the duly transcript assigning a certified as error only contrary con- law. can decision of Board is We changes procedure governing ‘appeals’ clude recent Assign- requiring an do not affect the established transcript ment of Errors in the Thus, judicial a of of of Industrial Board cases. a Assignment containing duly transcript certified to law with Errors that decision of the Board is appellant’s proper brief all that discussion in the necessary jurisdiction to invoke this court’s on review.” holding Appeals in Slinkard v. of the Court We affirm holdings Alloys, supra, Extruded our in Russell re-affirm al., supra, et al. et Cole Sheehan Construc v. Johnson Company, supra, Rules Trial Pro tion and hold apply to actions before do not cedure Repl. 40- Ann. Burns Ind. Stat. but that the statute § applies, appearing and one before 22-3-1-1 IC Board, seeking a review of decision and one must follow set forth in statute. accordingly, attempted appeals are, in these causes hereby dismissed. DeBruler, C.J., Hunter, JJ., concur;
Arterburn, Givan and J., opinion. dissents with
Dissenting Opinion My vote grant this case is to transfer DeBruler, J. Appeals case to the Dis remand the Court of for the Second dispute I trict for a decision on merits. have no interpretation given object (G) here, TR. 59 nor I re do given holding finement of Indiana State Personnel Board 448, (DeBruler, v. Wilson E. 271 N. J., dissenting newly opinion). without From a confluence of adopted Appellate Rules, procedural law, Trial and case provisions majority opinion, by relating of a interpreting them, future charts reasonable course for a most might However, majority also cases. Industrial Board logically have conclusion that motion to reached the neces- be filed the Industrial Board as a should sary seeking precedent Court of condition review in the being quoted 49-1512, Appeals. 14-5-7-2, I.C. Burns § majority governing ap- opinion requires in the the rules peals ordinary apply civil actions shall *6 Appellate the Industrial Board. Rule 4 indicates action, appeal may civil be taken from motion a denial of a correct 7.2 errors. Rule states that judgments from final no of error other than motion to correct errors shall record. be included in the One logical interpretation case, supra, of the Wilson it governing makes civil action to cases originating agencies. in administrative
Simply, my position appellants is this. Counsel for was stages litigation faced at making various of this a choice procedural what steps strong to take next. along way indications step he should take the a motion correct errors. The choice made counsel file a motion to errors before the Industrial logical one, appreciable and one not cause did harm opposing party. now, And we find out the first wrong time, he choice. that made my view, majority
In error makes, applying interpretation dismissing this case and new it without on the merits. decision Note.—Reported in 290 2d 53. N. E. Ray Thompson
Leonard State Indiana. 20, 1972. 1071S299. Filed December [No. Rehearing February 1, denied 1973.]