Summary
In Ball Brothers Co. v. ReviewBoard. (1961), 131 Ind. App. 683, 172 N.E.2d 898, for example, the court held that an appellate court is deprived of jurisdiction to review administrative action by a failure to file an assignment of errors.
Summary of this case from Claywell v. Review Board of the Indiana Department of Employment & Training ServicesOpinion
No. 19,410.
Filed March 17, 1961. Petition to Reinstate denied May 17, 1961.
1. APPEAL — Assignment of Errors — Jurisdiction. — The assignment of errors constitutes the appellant's complaint in the Appellate Court, is a requisite to any appeal and without a proper assignment of errors no jurisdiction is conferred upon the Appellate Tribunal. Rule 2-6 of the Supreme Court. p. 684.
2. APPEAL — Assignment of Errors — Rules of Supreme Court — Administrative Law and Procedure. — Rule 2-6 of the Supreme Court requiring an assignment of errors be filed in the Appellate Tribunal, applies also to reviews of decisions of administrative tribunals. p. 685.
3. APPEAL — Court Notes Own Lack of Jurisdiction. — The Appellate Court must take notice of its lack of jurisdiction on its own motion when the appellee fails in the duty to apprise it of such fact. p. 685.
4. APPEAL — Transcript — Index — Rules of Supreme Court. — Rule 2-5 of the Supreme Court requires that the transcript be indexed. p. 685.
5. APPEAL — Motion To Reinstate Appeal — Petition for Rehearing — Time Limitations. — While a motion to reinstate a cause after dismissal is recognized in Indiana practice, such a motion, where the dismissal is for other causes than the want of prosecution, is essentially a petition for rehearing and must be filed within the time limit for filing petitions for rehearing. p. 685.
6. APPEAL — Motion To Reinstate Appeal — Time Limitations. — Where more than twenty days had expired from the date of the dismissal of this appeal to the date of filing of the petition to reinstate, such petition will be denied. Rule 2-22 of the Supreme Court. p. 686.
From the Review Board of Indiana Employment Security Division.
Appellant, Ball Brothers Company, Inc., seeks to review the action of the Review Board of the Indiana Employment Security Division in upholding the right of several claimants to draw unemployment benefits. Appeal dismissed. By the court in banc.
Bracken, DeFur, Voran Hanley and Marshall E. Hanley, of Muncie, for appellant.
Edwin K. Steers, Attorney General, and Keith Campbell, Deputy Attorney General, for Appellee Review Board.
Earl G. Manor, of Muncie, for appellees, Rosa B. Barnes et al.
This matter comes before us to review the action of the Reviewing Board of the Indiana Employment Security Commission in upholding the right of several claimants to draw unemployment benefits under the Unemployment Security Act.
It affirmatively appears, in searching the record before us, that the appellants have failed to invoke the jurisdiction of the Court to decide this attempted review on the merits by failing to file an assignment of errors.
Rule 2-6 of the Supreme Court provides, in part:
"There shall be attached to the front of the transcript, immediately following the index, a specific assignment of the errors relied upon by the appellant in which each specification of error shall be complete and separately numbered."
The assignment of errors constitutes the appellant's complaint in this court. Our Supreme Court has stated in substance it is a requisite to any appeal, and without a proper assignment of 1. errors, no jurisdiction is conferred upon the appellate tribunal. See Bolden v. State (1956), 235 Ind. 695, 131 N.E.2d 301; Davis v. Pelley (1952), 230 Ind. 248, 251, 102 N.E.2d 910; § 2381, Flanagan, Wiltrout and Hamilton's, Indiana Trial and Appellate Practice, and authorities cited therein.
Rule 2-6 of the Supreme Court also applies to reviews of 2. decisions of administrative tribunals.
This court must take notice of its lack of jurisdiction on its own motion when appellee fails in the duty to apprise us of such fact. Catherwood v. McIntyre (1934), 99 Ind. App. 220, 221, 3. 192 N.E. 109, and authorities cited therein.
We note also that the appellant has failed to comply with Rule 2-5 of the Supreme Court in that the appellant failed to 4. cause the transcript to be indexed, pursuant to said Rule.
It appearing from the record that we lack jurisdiction because of the appellant's failure to file his assignment of errors, as provided by Rule 2-6, this appeal is dismissed.
Appeal dismissed.
Ax, C.J.; Bierly, J.; Gonas, J.; Kelley, J.; Myers, J.; Pfaff, P.J.; Ryan, J. concur.
ON PETITION TO REINSTATE
The appellant has filed a petition praying that his appeal be reinstated on the docket of this court.
While a motion to reinstate a cause after dismissal on appeal is recognized in Indiana practice (see Whisler v. Whisler (1903), 162 Ind. 136, at 141, 67 N.E. 984, also Jenkins 5. v. Steele (1913), 55 Ind. App. 11, 102 N.E. 139, 103 N.E. 365), such a motion, where the dismissal is for other causes than the want of prosecution, is essentially a petition for rehearing, and must be filed within the time limit for filing petitions for rehearing. See Fort Wayne Mercantile, etc., Assn. v. Scott (1919), 71 Ind. App. 266, 123 N.E. 718, 124 N.E. 710; § 2560, Flanagan, Wiltrout Hamilton's, Indiana Trial and Appellate Practice, Comment 1.
Rule 2-22 of our Supreme Court requires that petitions for rehearing be filed with the Clerk of this Court within twenty (20) days from the rendition of the decision.
It affirmatively appears from the record before us that more than twenty (20) days had expired from the date of the 6. dismissal of this cause to the date of the filing of the petition to reinstate.
For the reasons heretofore stated, the Petition to Reinstate is hereby denied.
Ax, C.J.; Bierly, J.; Gonas, J.; Kelley, J.; Myers, J.; Pfaff, P.J.; Ryan, J. concur.
Note. — Reported in 172 N.E.2d 898. Petition to Reinstate Denied 174 N.E.2d 756.