Summary
In Dove and Lamb, the court was influenced by the fact that the petitioner also filed a brief and thereby gave evidence of a good faith attempt at compliance with the rule.
Summary of this case from S.W. Parke Ed. Ass'n v. S.W. Parke ComOpinion
Transfer Denied Feb. 16, 1978.
Page 388
Robert J. Bremer, Calberts&sBremer, Greencastle, for intervenor-appellant.
Lyons&sBoyd, Rexell A. Boyd, Greencastle, Arch N. Bobbitt, Ruckelshaus, Bobbitts&sO'Connor, Indianapolis, for petitioners-appellees.
LOWDERMILK, Judge.
ON APPELLANT'S PETITION FOR REHEARING APPELLEES' MOTION TO DISMISS OR IN THE ALTERNATIVE TO DENY APPELLANT'S PETITION FOR REHEARING
Appellant timely filed her petition for rehearing.
To this appellees timely filed their motion to dismiss or in the alternative to deny appellant's petition for rehearing.
Appellant's petition for rehearing does contain some argumentative statements with citations of authority. Appellees attacked appellant's petition for rehearing by filing their motion to dismiss or in the alternative to deny appellant's petition for rehearing.
The motion to strike urges this court to dispose of appellant's right for rehearing by this highly technical means.
Rules of Appellate Procedure, Appellate Rule 11, Rehearings and Transfer, so far as it pertains to this cause is in the words and figures as follows, to wit:
"(A) Rehearings. Application for a rehearing of any cause may be made by petition, separate from the brief, signed by counsel, and filed with the clerk within twenty (20) days from rendition of the decision, stating concisely the reasons why the decision is thought to be erroneous. Such application may, if desired, be supported by briefs, but such briefs will not be received after the time allowed for filing the petition. Parties opposing the rehearing may file briefs within ten (10) days after the filing of the petition. No extension of time shall be granted for the filing of a petition for rehearing or any brief in connection therewith."
Appellees herein cite and rely on a case determined under the old Supreme Court Rule 2-22 which is identical to the present Rule above set out except that in the first line of Rule 2-22 the word "may" was "shall" and the last sentence on the new Rule was not a part of the old Rule 2-22.
In Custer v. Mayfield (1965) 138 Ind.App. 575 at 579, this court held at page 580, 207 N.E.2d 221, at page 222, "It has been held by our courts that a petition for rehearing must conform to the aforesaid Rule 2-22 and that it must not be an argumentative brief."
In the case of City of Evansville et al. v. Lehman (1966), 138 Ind.App. 587, 210 N.E.2d 672, 211 796, this court was presented with the same problem on petition for rehearing and again held that the petition for rehearing must conform to Rule 2-22 (Appellate Rule 11(A)) and that it must not be an argumentative brief.
While it is true that appellant's petition for rehearing was somewhat argumentative and did have citations of authority, it was accompanied by a brief containing argument and authorities in compliance with the Rule.
Our Supreme Court has held that where a party has made a good faith attempt to comply with the Rule that he should not lose his day in court on technical grounds only.
Thus we can best make our ruling on the motion to dismiss and the petition for rehearing by using the words of the late Judge Mote in City of Evansville et al. v. Lehman, supra, at page 633, 211 N.E.2d at page 797, as follows:
"It is not our purpose to violate the provisions of any rule, yet we are faced with the general rule that, although rules are adopted for the benefit of the court as well as for the use and benefit of the parties upon which they safely may rely, we do not wish to assume an arbitrary power of dismissal which finally would dispose of the appeal. Hence, we hereby deny the petitions for rehearing, as well as appellee's petition for dismissal of said petitions for rehearing."
Our Supreme Court in the case of Automobile Underwriters, Inc. v. Smith (1961), 241 Ind. 302, at page 306, 171 N.E.2d 823, at page 825, in denying a petition to transfer from the Appellate Court stated the following:
". . . Consistent with the purpose of the rule, alleged errors in the opinion, not supported by a concise statement of the reasons in support thereof, are considered waived. However, it is not necessary, as stated in the Dorweiler case, supra, that such reasons be supported by argument. In any event, however, if such reasons cannot be concisely stated, and it is considered that extensive argument in support of alleged errors in the opinion is desired, such argument must be submitted separate from the petition." (Original emphasis)
Appellees' motion to dismiss appellant's petition for rehearing is denied. Appellees' alternative motion to deny appellant's petition for rehearing is considered. The court, having fully considered appellant's petition for rehearing and being duly advised in the premises, now denies said petition.
ROBERTSON, C. J., and LYBROOK, J., concur.
ORDER
ROBERTSON, Chief Judge.
It has been brought to the attention of this court that when this court on November 28, 1977 denied Intervenor-Appellant Carol S. Stauffer's Request for Oral Argument on Petition for Rehearing, this court, also, mistakenly denied Stauffer's Petition for Rehearing. Only Stauffer's Request for Oral Argument on Petition for Rehearing was denied on November 28, 1977.
We now correct our ruling of November 28, 1977 by ordering that the portion of that ruling which denied Stauffer's Petition for Rehearing be omitted.
ORDERED this 3rd day of January, 1978.