Opinion
Rehearing Denied May 10, 1971.
For original opinion see 267 N.E.2d 187.
Appeal from Lake Superior Circuit Court, Lake County; Frank A.J. Stodola, Judge.
Timothy P. Galvin, Jr., John E. Leeney, Hammond, Galvin, Galvins&s Leeney, Hammond, of counsel, for appellant.
Albert C. Hand, Hammond, for appellee.
BUCHANAN, Judge.
ON PETITION FOR REHEARING
Rehearing should be granted in this case and thirty days given to appellant to file a new brief, which complies with Appellate Court Rules 8.2 and 8.3. We have acted sua sponte in dismissing this appeal and in the interest of deciding appeals on their merits appellant should be given an opportunity to rectify the defects of its previous brief.
This petition for rehearing is being considered at the same time we are ruling on a Motion to Dismiss in Willsey v. Hartman, (1971) Ind.App., 269 N.E.2d 172, in which case Judge Hoffman and I dissented from the majority opinion overruling appellee's Motion to Affirm or Dismiss. In so doing we expressed the view that while we would sustain the Motion to Dismiss or Affirm, thirty days time should be given to the appellant to file a brief in compliance with the rules. The briefs in both cases exhibited much the same defects and while we seek to decide appeals on their merits we also cultivate the fragile flower of judicial consistency.
My view is that such a policy of allowing a second bite out of the apple will not result in a deluge of defective appellants' briefs because most appellants do not want to prejudice the merits of their appeals in this manner. Further, if there has not been a good faith effort to substantially comply with the Appellate Rules relating to briefs, there is always the possibility that this Court may simply affirm the lower court's decision.