Opinion
Rehearing Denied June 26, 1972.
Opinion Superseded 290 N.E.2d 53.
Ross P. Walker, Indianapolis, for appellants.
Theodore L. Locke, Jr., Locke, Reynolds, Boyds&sWeisell, Indianapolis, for appellee.
ON APPELLEE'S MOTION TO DISMISS OR AFFIRM
PER CURIAM.
These cases are before the Court on the appellee's Motion to Dismiss or Affirm. The facts giving rise to the motions are the same in each of the above-captioned cases, and therefore the two cases are now consolidated on the Court's own motion for disposition by this opinion.
These are cases in which the appellants seek judicial review of negative awards of the full Industrial Board of Indiana. The appellee has filed motions to dismiss or affirm in both cases alleging, in substance, that the appeals were not perfected within thirty days from the award of the full Board, and that the appellants have failed to file assignments of error. An examination of the records in these cases reveals that in each case, both contentions are true.
The date of the award of the Board in each case was November 5, 1971. Thereafter, on November 11, 1971, motions to correct errors were filed in both cases. The Board denied the motions on December 7, 1971, after which, on December 15, 1971, the appellants filed their praecipes for the records. Both records were filed in this Court on January 4, 1972. On extensions of time within which to file these records were petitioned for, and none were granted by this Court.
The statute concerning appeals from awards of the full Industrial Board, Ind.Ann.Stat. § 40-1512 (Burns 1965 Repl.), IC 1971, 22-3-4-8, reads in pertinent part as follows:
'An award by the full board shall be conclusive and binding as to all questions of (the) fact, but either party to the dispute may within thirty (30) days from the date of such award appeal to the Appellate Court for errors of law under the same terms and conditions as govern appeals in ordinary civil actions.' (our emphasis)
The statute further provides:
'An assignment of errors that the award of the full board is contrary to law shall be sufficient to present both the sufficiency of the facts found to sustain the award and the sufficiency of the evidence to sustain the finding of facts.'
Because the appellants have not perfected their appeals within the time allowed by the statute, or within time as might have been extended by this Court on timely filed petitions, the Court does not have jurisdiction of these cases and the same must be dismissed.
The appellants earnestly contend that the Indiana Rules of Procedure apply to their cases and govern the method of appeal from the Industrial Board, rather than the above-quoted statute. Appellants rely on the recent cases of Indiana State Personnel Board v. Wilson (1971), Ind., 271 N.E.2d 448, and Bradburn v. County Department of Public Welfare (1971), Ind.App., 266 N.E.2d 805, in support of their position. We have carefully read and reflected upon these opinions and have concluded they are not applicable to the cases now before us.
In both the Wilson and Bradburn cases, a motion to dismiss was sustained because the appellant did not file a motion to correct errors in the trial court before appealing. The Wilson case was an appeal from the Superior Court of Marion County from a judgment entered by that court in a proceeding to review a determination of the State Personnel Board. The Supreme Court sustained the appellee's motion to dismiss and concluded that all matters of which a party complains in any proceedings in a trial court must be brought to the attention of the court and the court be given the opportunity to correct its errors. The Bradburn case was an appeal from the St. Joseph Circuit Court from a judgment on an agreed case. The Appellate Court sustained the motion to dismiss filed in that case and held that in all appeals from a final judgment, the appealing party must file in the trial court a motion to correct errors as a condition precedent to an appeal.
One of the functions of the motion to correct errors is to preserve alleged errors for appeal. Those errors occurring up to the time of the filing of the motion, which are not included in the motion, are waived on appeal. The statute pertaining to appeals from the Industrial Board states:
'An assignment of errors that the award of the full board is contrary to law shall be sufficient to present both the sufficiency of the facts found to sustain the award and the sufficiency of the evidence to sustain the finding of facts.'
We note that in the motion to correct errors in each of the cases now before us, the appellant has alleged, inter alia, that the decision of the full Board is contrary to law. Therefore, the Court could have considered these cases on the merits if we had acquired jurisdiction by the timely filing of the records of the proceedings, within thirty days after the awards of the Board, or within time as might have been extended by this Court.
Each of the several administrative agencies is a creature of the legislature. The procedures to be followed in presenting matters to these agencies and in appeals therefrom are specifically set out in the statutes pertaining to each. We do not think the rules of trial procedure, which, as stated in TR. 1, IC 1971, 34-5-1-1, govern the procedure and practice in all courts of the State of Indiana, are applicable to proceedings before, and appeals from, the administrative agencies. The Supreme Court of Indiana has not spoken on this question. The Supreme Court has spoken as recently as February 23, 1972, in an opinion denying rehearing in the case of State of Indiana v. Bridenhager, et al., Ind., 279 N.E.2d 794, on the precedence of the new rules of procedure over statutory rules of procedure in conflict therewith. Again, that case was an appeal from a trial court, as were the Wilson and Bradburn cases, and the Court had before it a question pertaining to a particular trial rule and its application in the trial court.
Before the adoption of the Rules of Procedure of 1970, it was held that the provisions of the statute pertaining to appeals from the Industrial Board must be construed to relate to the mechanics of presenting the case in the Appellate Court rather than to the manner of saving questions before the Industrial Board. Russell, et al. v. Johnson, et al. (1942), 220 Ind. 649, 46 N.E.2d 219. Thus, in the case of Cole v. Sheehan Construction Company (1943) 222 Ind. 274, 279, 53 N.E.2d 172, 174, our Supreme Court stated:
'There is no such thing as a motion for a new trial in a compensation proceeding, but 'an assignment of errors (in the Appellate Court) that the award of the full board is contrary to law shall be sufficient to present both the sufficiency of the facts found to sustain the award and the sufficiency of the evidence to sustain the finding of facts . . .'. Under the civil practice the failure of the trial court to find facts established by the evidence and which should have been found, may be challenged by a motion for new trial on the ground that the findings are contrary to law . . . But under the compensation law such an error is presented to assigning that the award is contrary to law and by an appropriate proposition based thereon in the appellant's brief.'
We believe the reasoning set out above to be sound and equally applicable to cases arising today from the Industrial Board. Subsequent to the adoption of the new rules of procedure, this Court had before it the case of Slinkard v. Extruded Alloys (1971), Ind.App., 277 N.E.2d 176, which was a judicial review of an award of the Industrial Board, in which the appellant did not file an assignment of errors. This Court concluded that it was necessary, in order to invoke the jurisdiction of this Court to review an award of the Industrial Board, to file the proper assignment of error provided for by statute, and stated:
'We find no provision in the Indiana Rules of Trial Procedure or in the Indiana Rules of Appellate Procedure, as they now exist, which expressly or impliedly requires the filing of a Motion to Correct Errors before the Industrial Board or which eliminates the necessity of filing in this court a duly certified transcript assigning as error that the decision of the Board is contrary to law.
We can only conclude that recent changes in procedure governing 'appeals' do not affect the established practice of requiring an Assignment of Errors in the transcript of the proceedings for judicial review of Industrial Board cases. Thus, a filing of a duly certified transcript containing an Assignment of Errors that the decision of the Board is contrary to law with a proper discussion in the appellant's brief is all that is necessary to invoke this court's jurisdiction on review.'
We now reaffirm the holdings of the Russell, Cole and Slinkard cases, supra, and hold that the rules of trial procedure do not apply to actions before the Industrial Board, but that the statute (Ind.Ann.Stat. § 40-1501 et seq. (Burns 1965 Repl.), IC 1971, 22-3-11-1) applies, and one appearing before the Board, and one seeking a review of a decision of the Board, must follow the procedure set forth in the statute. We find this to be entirely consistent with Rule 81(b), I.C. 34-5-1-1, which reads in part as follows:
'Except as otherwise provided by these rules, there rules shall apply to civil remedies and proceedings provided by statute insolfar as such remedies and proceedings are not inconsistent with these rules, but provisions thereunder shall control if they afford a more expeditious and less formal procedure.' (our emphasis)
It could hardly be disputed that the rather informal and summary type hearings before a claims referee and the full Industrial Board provided for by the statute is a more expeditious and less formal procedure than that required by the rules of trial procedure in actions in trial courts.
We are not unmindful of, or unsympathetic with, counsel's plight, which is akin to that of Alice's when she found herself through the looking glass and conversing with Humpty Dumpty. When Alice protested she didn't know what he meant by a certain word, he replied, 'Of course you don't--'til I tell you.' As Justice Prentice observed in the Bridenhager opinion on rehearing, the transition (into the new rules of procedure) will be fraught with frustration. This Court also recognizes that difficulties will be experienced in attempting to understand and comply with the rules. Therefore, this Court will decide cases on the merits whenever it is possible to do so. But when, as in these cases, the Court does not acquire jurisdiction, the appeals must be dismissed.
Carrol, Lewis, Through the Looking Glass, Random House, 1946.
The appellee's motions to dismiss in both cases are sustained, and these causes are dismissed.