Opinion
Rehearing Denied May 4, 1977.
George W. Brady, Muncie, for appellants.
Robert J. Barry, Hartford, City, for appellee.
ON MOTION TO DISMISS
WHITE, Judge.
Whether we should grant or overrule appellee's motion to dismiss turns on whether we should treat the record of the proceedings below as having been filed with the clerk of this court 'within ninety (90) days from the date of . . . the ruling on the motion to correct errors' as required by Appellate Rule 3(B).
The record reveals that appellants' Motion to Correct Errors was overruled on August 20, 1975. Ninety days thereafter fell on Tuesday, November 18, 1975. The appellant George Brady argues in his Reply to appellee's motion that he mailed the record of the proceedings to the Clerk of this Court on November 17, 1975. However, through inadvertence and mistake, he failed to enclose his check for the filing fee. Two days later, on November 19, 1975, appellant Brady was informed by the Clerk's Office that the filing fee had not been paid. Brady arranged with the Clerk's Office to mail the filing fee, whereupon the Clerk's Office filed the record, as of November 19, 1975--the ninety-first day after the overruling of the Motion to Correct Errors.
Pertinent to the issue is Ind.Ann.Stat. § 33-15-5-2 (Burns Code Ed., 1975), which reads in relevant part:
'The clerk of the Supreme Court shall tax and charge in each cause, filed in either the Supreme or Appellate Court, the following fees and amounts:
'For filing each case in either the Supreme or Appellate Court, a fee of $25.00; . . ..'
An official opinion of the Attorney General of Indiana, No. 17 of 1967, concluded that '(t)he payment of the $25.00 fee for the filing of a case in the Supreme or Appellate Court cannot be demanded in advance . . ..' The opinion added the caveat: 'I have not been asked, and would not presume to suggest what might be the effect of a duly adopted rule of the Supreme Court requiring advance payment of the filing fee.' 1967 O.A.G. 101, 114.
Thereafter, effective January 1, 1970, the Supreme Court adopted new rules, including Appellate Rule 11(B)(7) providing that '(u)pon the filing of . . . an appeal to the Supreme Court or Court of Appeals, the . . . appellant shall pay a filing fee of one hundred (100.) dollars to be collected by the clerk of this court for the state of Indiana in addition to any other filing fees to be paid to said clerk.' (Our emphasis.)
Although we agree with the Attorney General's opinion to the effect that the wording of the statute (Ind. Code § 33-15-5-2) does not authorize the clerk to make payment of the twenty-five dollar filing fee a condition precedent to the filing of an appeal, we hold that rule AP. 11(B)(7) mandates the clerk to collect the $100.00 fee at the time he accepts the appeal as 'filed'. In this case the appellant was not entitled to have the appeal filed by the clerk until he had tendered not only the record but also the $100.00 filing fee. Even though we give the appellant the benefit of an overly liberal definition of 'tender', it is impossible to find that he made a tender of the filing fee until the time for doing so had expired. AP. 3(B) requires it to be filed within ninety days from the date of the ruling on the motion to correct errors. It was not until the ninety-first day that appellant did anything at all about the filing. If his promise on that day to mail it to the clerk can be considered a tender, which we seriously doubt, it was one day late.
As 1967 O.A.G. No. 17, at p. 103, points out, the filing of an appeal consists of two separate acts: the party submits it and the clerk accepts it. The appeal is not 'filed' until the clerk has signified his acceptance by endorsing it as filed and making a record thereof.
Appellee's motion to dismiss is sustained and the appeal is dismissed.
BUCHANAN, P. J., concurs.
SULLIVAN, J., dissents with opinion.
SULLIVAN, Judge, dissenting.
Notwithstanding that the Clerk did not record the filing of the record of the proceeding until November 19, 1976, such record was timely filed on November 17, the date on which it was deposited in the mail. Rule AP 12(C). The portion of this rule which requires that 'charges (be) prepaid', obviously refers to postal charges not to filing fees imposed by the Court. The record in this cause further reflects that the filing fee was paid November 21, 1975.
Rule AP 3(A) tells me that jurisdiction of an appeal is acquired by this Court 'on the date the record of the proceedings is filed with the clerk'. Rule AP 11(B)(7) does not provide otherwise; nor does it provide that the payment of the filing fee is a condition precedent to the filing of the record of proceedings. What it does say is that the appellant shall pay the filing fee 'upon the filing of an appeal'. This language presupposes that the record has been, or is being, filed and therefore that jurisdiction has been, or is being, acquired. To be sure, Rule AP 11(B)(7) contemplates that an appellant pay the filing fee at the time the record is filed but momentary failure or inability to comply with the mandate of this Rule does not, in my view, divest the Court of the jurisdiction acquired by timely filing of the record.
I have little doubt that Rule 11(B)(7) was placed in its present form in order to remedy the effect of 1967 O.A.G. 101, which advised that the then controlling statute did not authorize the Clerk of this Court to require the filing fee as a condition precedent to the filing of an appeal. I further acknowledge the valid and businesslike purpose to be served by requiring the filing fee to be paid simultaneously with the acquisition of jurisdiction. The two things are not synonymous, however. Moreover, there are numerous methods to effectively enforce the payment of a filing fee without couching such enforcement in jurisdictional terms, so as to cause dismissal of an appeal timely filed.
I therefore dissent.