*1 litigation pertinent bear or relevant to or some thereto.” relation Additionally, summary judgment affidavit was, relevant law, cause number S 594-62 as a matter of filed in genuine litigation issue in that case. there was no Since Appellees entitled to a of material fact and since were case, judgment the trial court was as a matter of in this law judgment granting summary correct in said motion for be, hereby is, should affirmed.
Judgment affirmed. Staton,
Hoffman, J., concur. C.J. and Reported at 436. 297 N.E.2d Rosemary Spencer Miller. E. James Filed June 1973. appellant. Hughes, of Robert E. appellee. Indianapolis, for Maher, of Robert W. pending cause is Court on before Curiam. This
Per alleges Affirm, or which Dismiss thirty days not filed within after in this cause was correct errors. the motion to trial court’s on motion record reveals that An examination 10, 1972, overruled on November errors filed correct was not until filed was November 26, 1972. December to correct motion
Since the errors April 1, 2 applies. provides 1972, Rule AP. Said rule as follows: “An is initiated the clerk of trial with praecipe designating court what is to be included in record filed and that said shall be proceedings, *2 days thirty (30) ruling within the court’s right appeal to Errors or the Motion Correct to for- will be feited.” recent Court in several cases
The has construed the rule mandatory. See: Brennan v. National Bank & to be Trust Co. 628, App. 573; Bell, (1972), 153 288 Ind. N.E.2d et al. v. Valley (1972), App. 575, Wabash Trust 154 Ind. Co. 290 454; (1973), App. Moore In re Est. Ind. 155 N.E.2d 291 of 566; Utilities, Inc. Water LeFevre (1973), v. N.E.2d 293 Soft Therefore, understanding in accordance N.E.2d with our rule, is of the to Dismiss sustained and is cause dismissed. this
Sullivan, J., opinion. dissents with
Dissenting Opinion chronology sequence of J. The and the crucial Sullivan, steps procedural virtually this followed in case are identical (1973), to in Moore App. 92, those Farmers Bank 155 Ind. I N.E.2d wherein dissented from a dismissal of that appeal. I would reiterate in here that said dissent what append but would thereto that observation AP. Rule my 14(B) seems to belief that 2(A) AP. Rule is not jurisdictional a rule the sense that timely in an otherwise appeal praecipe if has not been re days quested thirty (30) within on a Motion to Error. Correct 14(B) provides
AP. Rule no that extension of for the time proceedings granted of a record of will unless be period provided by has been filed within AP. 2(A). timely If file irre- failure constitutes right truly jurisdic- of trievable waiver is and provision tional, 14(B) totally unnecessary of is AP. implication 14(B) is, of least The clear at redundant. AP. my view, notwithstanding file a failure thirty appellate (30) days, and the record within tribunal permits it, appeal may considered within its discretion be days upon proceedings ninety (90) of a record within ruling upon the Correct I of Motion to Error. would over- Motion to Dismiss. rule Reported N.E.2d 491. at 297 Development Metropolitan Commission of Marion
The Department Develop Metropolitan of County, City of its Division ment Metropolitan Zoning Planning Newlon, v. Everett Appeals Zoning County, of Marion Division Board
Three. *3 denied Filed June Counsel, Indianapo- Corporation Rees, Deputy David F. appellants. lis, for Castor, & Nickels, Bulen
James R.
appellees. the Motion the Court on is before case
Per Curiam This attempted Affirm to Dismiss or Newlon appellee Everett