*1 Spann. Evelyn Lee Moore M. Crawford Bolden. D. William Smith Victoria Rehearing July 18, 1973. 172A38, 172A39. denied October Filed [Nos. 25, 1973. March 1974.] Transfer denied *2 Shadel, Legal David Indianap- F. Services Organization, of olis, appellants. Summary
Case attempted P.J. This is an consolidated Buchanan, Petitioners-Appellants Evelyn wherein M. Moore and Victoria seek by Smith reversal of denial trial of their Peti- To paternity tions As Poor Proceed Persons actions filed by them, but failed to in the include Record a certified Motion Correct Errors filed in court.
We dismiss.
FACTS unchallenged appear The facts to be: Appellants The are seeking unmarried pa- women to file ternity complaints in County the Marion Juvenile Court against Spann alleged and Bolden as the their fathers of minor children. The mothers have support received no or financial putative assistance from the fathers, but each has public received welfare in Dependent the form of Aid To County Department Children from Marion of Public Wel- they living fare and contend are on budget,” i.e., a “deficit Department pay the Welfare does not the full amount of the family’s budgeted needs. they $7.00, fee of pay
Alleging of funds to lack Persons. Poor As To Proceed For Leave Motions filed denied were Following hearing, Motions these 21, 1971. December County on Court Juvenile Marion Errors, To Correct apparently Motions Appellants filed then subsequently denied. were which Proceedings contains each case of the
The Record Evidence, Case, and State- Statement Statement in connection with Issues relied ment (A) (3) (c). Rule AP. 7.2 prepared in accordance with and was To copies the Motions not contain certified The Records do February denied on were filed and Errors which Correct The Statement 10,1972, included. the substance thereof nor is reflect that the Motion To Correct case does of Case each day February 10, denied the same 1972 was Errors filed reading: by an Order having plaintiff’s “The considered Correct Motion To *3 hereby plaintiff’s Er-
Errors rors Motion To Correct DENIES 10,1972.” February filed on itself Motion To Correct Errors nor the substance Neither the Appellants’ Briefs, rely which thereof is set forth in of issues without reference whether these issues statement Errors. the Motion were or were not included in To Correct Proceedings consolidated cases The Records of these substantially purposes are and are treated alike for same appeal. of this
Appellants filed a Motion To Proceed As Poor Persons filing court; and in this for waiver of fees court costs showing Appellants poor upon prima persons facie were authorizing January 31, Order on entered an this court docketing filing all to allow of this court the Clerk appeal payment relating to this without proper documents any fee. Although pleadings upon puta- service all was made Attorney fathers and cor- tive General and poration City pleading, Indianapolis, counsel for the no response opposition brief, or has been filed in relief to the sought by argument Appellants. requested. No oral was
ISSUE Proceedings compels Examination of the Record of the reso- lution this limited issue:
Must this be dismissed because a certified of the Motion To Correct Errors was not included as by (1) (A) AP. ? Rule by sponte, Because we raise this issue sua the brief filed Appellants, replete cogent argument while with relating inapplicable authorities to the cause, merits of their to the discussion that follows.
DECISION opinion CONCLUSION —It is our must Appellants dismissed because the failed to include a certi- fied of the Motion To Correct Errors required by 7.2(A) 7.2(A) Record as (1) (a) 59(G). and Rule TR.
Appellate practice prior adoption in Indiana to the Indiana Rules of Trial Procedure January 1, effective and the January 1, Rules of Procedure effective generally recognized 1972 was characterized pro- fixed legal profession many years. cedure familiar An filed a motion for a new with the trial judgment court after process was entered and the *4 began overruling seeking party after the of that motion. The appeal required assignment was include an of errors in indicating every the Record each and error relied on in the appeal.
37 conformity assignment speci- in This was with the 2-6, was fied what then known as provided: which, part, AND “RULE 2-6. OF ASSIGNMENTS ERRORS CROSS-ERRORS. —There of the be front shall attached to the specific transcript, immediately following index, assignment upon by of the errors relied specification complete
which each
of error shall be
separately numbered.
. . .
“In all cases in
trial
which motion for
new
appropriate procedure
mo-
preliminary
appeal,
to an
such
grounds
specify
separately
tion shall
filed and shall
be
therefor
each error
relied
however and whenever
arising up
filing
motion,
to the
time of
such
assignment
on
the effect that
the trial
error
only
overruling
court erred in
motion shall be the
said
raising
appeal.
all
asserted errors on
means of
said
In
arising
and in cases of asserted errors
subse-
other cases
such
quent
trial,
for a
to the
new
assigned
may
independently.”
,
asserted errors
assignment
appellant’s
errors constituted
com
appeal. Brown v.
Harding (1965),
App.
plaint
136
on
Ind.
Stamm v.
680;
App.
(1963),
Price
678,
204 N.E.2d
Ind.
v.
Denny’s
837; Haney
(1962),
566,
Estate
346;
App.
Indiana Construction Material
Ind.
Co. v.
Gelopulos
App.
131 Ind.
Because of errors was the plaint appeal, the inclusion of an of errors Therefore, the Record was deemed act. failure to include an of errors the Record though jurisdiction, dismissal of the for lack of even predecessor (the a motion for a motion to new timely errors) had been filed with the trial court. supra; Price, Brown App. Stamm Graue Bolden 435, 171 N.E.2d v. Pelley (1952), Davis 910; Flanagan, Hamilton, Indiana Wiltrout *5 (West Appellate Practice, 151-152 2381 and
and §§ 1952). supra, Price,
Typical practice of this entrenched is Stamm say failure in about which the Court had this assignment to include the of in the Record: errors assignment general of “It is that the the rule of law appellant’s complaint court. errors in constitutes the this requisite Supreme substance, Our it is a Court has stated in assignment any appeal, proper errors of and without a See jurisdiction appellate tribunal. no is conferred the App. 435, N.E.2d Brown Graue Davis 695, 131 Bolden v. See, Pelley 251, 102 910. Hamilton’s, Trial also, Flanagan, Appellate Practice, Indiana Wiltrout cited therein. authorities § jurisdiction appearing that we lack “It from the record assignment of appellant’s file his of failure to because the dismissed.” provided by 2-6, is errors as Rule assign- then, doubt, no inclusion of an There can be Record was ment errors in the reviewing deprive include it in the Record and failure to notwithstanding jurisdiction, the fact that a court of timely trial filed with the court. for a new trial was This, then, in Indiana was the state affairs respect requirement practice with to the fundamental Ap- assignment the Record when the of errors in pellate in 1970 and 1972. were revised wrought changes by the
At time substantial were changes way did adoption Rules, no of the new but such assignment principle that an errors violence to requirement appellate review. Record is a Harvey Dean and Professor Townsend comment As (West 1971) Practice, 59.7, at : Volume § prior former (G) practice continues found in “Rule 59 requiring Motion 2-6, of of a precedent appeal.” condition to an Errors as a to Correct assign- That motion to correct errors fills the office procedure of errors under ment our former made mandatory language certain of Rule (A) (1) (a), which states: “(a) appeals In all from judgment, a final a certified the motion to correct errors filed with the purposes shall for all constitute of to errors. No of error than other the motion (Emphasis shall be included the record.” *6 supplied.) (A) provides: Rule AP. 7.2 also “ (A) proceedings shall DEFINITION. The record of the following
consist of the documents: (1) copy A certified of the motion errors to correct assignment or an of errors.” January Numerous cases since 1, 1970 that have recited timely filing the of a motion to correct errors with the trial necessary give
court is
to
appellate
an
tri
Indiana
jurisdiction
appeal:
bunal
of the
County
Bradburn v.
Department
Public
(1971),
App.
148 Ind.
Welfare
387,
805;
N.E.2d
Diggs
State Personnel Board v.
156,
257 Ind.
868; Gray
272 N.E.2d
v. State
447,
535; Lashley
v.
Centerville
App. 556,
519;
Ind.
Indiana State Personnel
Board v. Wilson (1971),
674,
One of the cases is County Department Bradburn v. Welfare, Public supra, per in which opinion curiam recognized of the the time-honored that rule Assignment Motion To Correct Errors or Of Errors as specified (G) Rule TR. 59 is vital jurisdiction: to invoke our “The certified of the motion to correct as
required by Appellate 7.2(A) (1) (a) place takes the of the of errors procedure. under our former The certified of the motion to correct errors is appellate in timely tribunal. The there- jurisdiction give necessary tribunal to isof instance, motion when, appeal, this as because appeal must dismissed all, filed at not Practice, Wiltrout, Indiana Vol. jurisdiction. has no court 3, etc. Pelley Trustee, Minker, Spelde 196; ex rel. p. State § v. v. et al. 421, 193 N.E.2d Davis Ind. (1963), 244 (1951), 230 Stamm Ind. App. 566, 837.” (1963), 134 al. Price et a determination of the State review to proceeding In July 26, 1971 Court on Board, the Indiana Personnel motion correct errors had because dismissed May case, Bradburn decided cited the filed and not been general proposition for the saying it stands “now required errors is and takes to correct that a errors under former rules place of the Wilson, supra, Board Personnel procedure.” (Indiana State 1971), Gray (May 21, 450.) effect is To the same Judge said: supra, Givan wherein any disclose “However, of the record fails to a search errors was ever filed motion to by of Procedure Indiana Rule appellant preserve therefore, has, failed to TR. 59. The present Court.” any error *7 fly the in the While remains ointment. However, a small January support proposition the since cases decided the the the old to Rules from new in the transition that appeals final in from concept inviolate that has remained of an errors judgments Record of in the inclusion juris- errors) to correct is motion a (now the form of the no in which requirement, our research reveals cases dictional timely then a motion to correct errors filed the certify copy in the Record.1 failed to halfway appellants us, reached a the In before the case appellate review, the because, objective from of house their Thq separately not be certified. State to correct errors need 1. motion Rental, Inc., Truck Associated Auto & Tax Board Commissioners of App. 611, 626. to Motion they in fact file a us, appears did it before Record sacred document include that Errors, failed to but Correct Record. language necessarily from conclude so, Even we must construing and the cases of both assign- requiring of an them of inclusion rationale motion ment of The errors in the Record remains unscathed. without appeal, and correct errors is certainty in the as to the exact errors raised keystone intelligent of This is the review is frustrated. arch of review. appellate procedure many
While technicalities by adoption streamlined have been eliminated of more procedure, copy of the certified inclusion as in the Record 7.2(A)(1)(a) TR. 7.2(A)(1) and Rule reluctantly (G), principle that we must fundamental so appeal. dismiss this appeal is dismissed.
This therefore
Sullivan, J., White, concur. J. and Reported 490. Note. — Rehearing
On Petition Appellant’s Peti- P.J. CONCLUSION—The Buchanan, Rehearing tion for is denied. Spann, dis- appellants, Moore and was
The certified include the record a missed to their due failure required by Rule Motion to Correct Errors Ap- 7.2(A) (1) 7.2(A) (1) (a) the Indiana Rules of pellate defect. Procedure —a PETITIONERS’ ARGUMENT OF STATEMENT pro- Rehearing argues Rule AP. Petition for determining shall method of what an alternative vides for *8 complete in the be included record and is in and of itself independent from distinct Rule AP. 7.2. contemplates
It is true Rule AP. 7.3 an record abbreviated agree parties on where to what constitutes purposes record for pre- of and the facts and issues procedure perfect A sented. certain record under these unusual circumstances.
GROUNDS FOR DENIAL objective shortening laudable the record where by agreement possible parties should not dis- be
couraged. However, neither can Rule AP. 7.3 requirement construed to eliminate the fundamental any appeal, i.e., inclusion of a certified Assignment the Motion to Correct Errors or an (as of Error may be). the case
The record in this purportedly case does indicate the issues Court, before but does not include the Motion to Correct only Errors itself. There is a reference to the Motion Errors, thereby leaving to Correct mystified us as to its contents. appellate practice
Our is not to be confused with Federal rules procedure1 which do not require designation or ap peal. appellate practice, regulated by Appellate now (1)
7.2(A) 7.2(A) (1) (a) 59(G) and Trial Rule on this traditionally subject, has requirement. insisted on such a interpretation Appellant’s of Rule AP. 7.3 is bereft of authority. specific In effect it reads into the rule elimination of the need for a certified of the Motion to Correct 1. Rule 10D of the Federal contemplates Procedure agreed similar, statement of identical, the record but not to our Rule AP.7.3. *9 prac requirement contrary universal to the Errors Errors to Correct Motion treats tice which of which appeal, the inclusion appellant’s County jurisdictional Bradburn act. record is deemed v. 387, App. (1971), 148 Department Public Welfare of 805; Diggs Board v. Personnel Indiana State (1971), Gray N.E.2d 257 Ind. Lashley Centerville 256 Ind. Personnel 519; Indiana State App. 448. Board Wilson principle inclusion opinion, the in our indicated As Errors to Correct of the Motion certified the Record re- errors) is a (or an applied been quirement appellate review that has administrative, civil all to classes cases— criminal. parties to this action in the trial
The fact that adverse appear appeal, chose not to not court and to the and defend is bring attempt pro- appellant’s itself fatal within the 7.3, but failure to visions of Rule AP. there include in of the Motion to record certified Correct Errors is certainty the exact fatal. as to errors raised in the Without intelligent court, at level frus- review trated. ingrained appellate practice deeply in our is the funda-
So concept only of errors mental of an amendment requirement. eliminate If
Court could at some undertaken, future time modification of this rule is Assignment “Motion to Correct Errors or an the words might be Errors” well inserted the second sentence Thus, included in the rule as an item to be statement. unequivocably same and AP. 7.2 would state the 7.3 requirement.
Meanwhile, opinion it 7.3, is our that Rule AP. (A)(1) pari 7.2(A)(1)(a) must read supported by materia —a conclusion cited the cases above.
Rehearing is therefore denied. JJ., White,
Sullivan concur. Reported N.E.2d 825. Note. — Pugh Conway Conway, Juel v. Wilson and Lavonne
Harold Lawrence Lucille Lawrence. July 19,
[No. 2-1072A76. Filed 1973.]