This matter is before the Court on the Appellee's Motion to Dismiss Appeal or Affirm Judgment, and the Appellant's Motion to Strike Appellee's Motion to Dismiss Appeal or in the Alternative to Affirm Trial Court's Ruling Correcting Record Showing Praecipe filed as of July 5, 1972.
The Motion to Dismiss alleges that the praecipe was not timely filed as required by rule AP. 2(A).
The record of the proceedings herein reveals that the motion to correct errors was filed in the trial court on May 4, 1972, and overruled on June 28, 1972. The praecipe was filed on July 31, 1972, as evidenced by the order book entry and by the trial court clerk's file stamp. Thereafter the appellee filed his motion to strike notice of appeal and praecipe, alleging that the praecipe was not timely filed. The appellant then filed its motion to correct record, nunc pro tunc, alleging that on July 5, 1972, counsel for the executor requested of the court reporter that the transcript of the proceedings be prepared, the pleadings be certified for the Appellate Court and that the praecipe be prepared. The motion to correct record nunc pro tunc was accompanied by the affidavit of the court reporter stating that counsel for appellant approached her in open court and requested of her preparation of court transcript, certification of the pleadings and record for filing with the Court of Appeals, and preparation of the praecipe, including the items for appeal.
Thereafter the court heard argument on the appellee's motion to strike notice of appeal and praecipe, and the appellant's motion to correct record nunc pro tunc, and entered its order directing the record to be corrected to show the praecipe filed on July 5, the date of the oral request to the reporter. Because of the importance of the question presented, we set out the trial court's order in full, as follows:
Appellate Rule 2(A) reads as follows:
The rules of the Supreme Court are binding on the courts and the litigants as well. No court except the Supreme Court can amend, alter or change the rules. No inferior court or litigant can circumvent the rules and thereby avoid their application. Trial rule 81, IC 1971, 34-5-1-1, provides in part as follows:
An oral request to the court reporter to prepare the transcript does not comply with the requirement of the rule that an appeal is initiated by filing with the Clerk of the trial court a praecipe. The rule further requires that a copy of such praecipe shall be served promptly upon opposing parties. The rule clearly requires that the praecipe be a written document, that it be filed with the clerk, the custodian of matters filed in the court, and that a copy thereof be served on opposing counsel.
The appellant did not comply with rule AP. 2(A) by timely filing its praecipe with the clerk. Therefore, by operation of the rule, it has forfeited its right to appeal. The action of the trial judge in changing the record to show the praecipe filed twenty seven days earlier than it actually was
The language employed by the Supreme Court in rule AP. 2(A) to express its intent, in our opinion, leaves no room for speculation as to the meaning of the rule. "An appeal is initiated by filing with the clerk of the trial court a praecipe ..." (our emphasis). Without a praecipe being filed with the clerk, no appeal is begun. ". . said praecipe shall be filed within thirty (30) days after the court's ruling on the Motion to Correct Errors or the right to appeal will be forfeited." (Our emphasis.) The language of this clause is mandatory, not permissive. Without a praecipe being filed with the clerk within the time prescribed by the rule, the would-be appellant in a civil case may not proceed. He has failed to initiate an appeal and his right to appeal has been forfeited.
It is argued that this rule should not be applied to cases such as this one in which the appeal was perfected by filing the record of the proceedings in this court within 90 days after the ruling on the motion to correct errors. Appellant further argues that the purpose of the rule was to facilitiate the perfecting of appeals and to discourage the practice of waiting until the 89th day after the ruling on the motion to correct errors before filing the praecipe and then petitioning the appellate tribunal for an extension of time within which to perfect the appeal.
We believe that if the Supreme Court had intended an exception to the rule in such cases, the Court would have so provided. It did not so provide. We conclude, therefore, from the mandatory language of the rule, and the lack of a stated exception thereto, that the Supreme Court intended the rule to apply to every case.
The rule was amended November 30, 1971, effective in all cases in which the motion to correct errors is filed after April 1, 1972. The motion to correct errors was filed in this case on May 4, 1972, and therefore the rule applies.
We are bound to apply the rule as we understand it to be. Even though its application in a particular case may appear to be harsh, we may not evade it. As we said in Brennan v. National Bank and Trust Company of South Bend et al. (1972), Ind. App., 288 N.E.2d 573, if the Supreme Court feels that the application of the rule in such cases seems too harsh, it alone has the power to change the rule. This Court has no such power. Accordingly, the Appellee's motion to dismiss is sustained, and this cause is dismissed.
SULLIVAN, J., dissents with opinion.
SULLIVAN, Judge (dissenting).
Notwithstanding this writer's tacit concurrence in Bell v. Wabash Valley Trust Co. (decided December 20, 1972) Ind. App., 290 N.E.2d 454, wherein an appeal was dismissed under similar circumstances, I do not concur here. In the interim, opportunity for reflection upon the purpose of AP. Rule 2(A) has compelled my change of procedural position.
As applied by the majority here, AP. Rule 2(A) is unduly harsh. In my view the Rule serves a legitimate purpose only insofar as it tends to expedite the appellate process. Its exclusive value is in its prevention of an appellant from procrastinating nearly to the end of the 90 day filing period provided by AP. 3(B) and then seeking an extension of time in order to request, at that late date, that a transcript be prepared. Application of the rule should be restricted to the implementation of that purpose.
In the matter before us, appellant's transcript was filed within the 90 day period required by AP. 3(B) and appellant's brief was timely filed pursuant to AP. 8.1(A). It should also be noted that the appellee filed his answer brief within 30 days thereafter as required.
Appellant, I believe has good cause to argue that by filing his answer brief upon the merits, appellee has waived any such technical forfeiture on the part of appellant. See Board of Tax Commissioners v. Stanley (1952) 231 Ind. 338, 108 N.E.2d 624.
Be that as it may, and even if appellee has not waived the grounds for dismissal as asserted in his October 12, 1972 motion to dismiss, by the filing of his answer brief upon the merits, no delay has been occasioned by the very technical failure to reduce to writing appellant's timely request for the transcript and by the technical failure to make such request a formal matter of record. When the purposes of the rule are not frustrated the court need not visit the wrath of dismissal upon an otherwise diligent appellant who expedites the appeal. For purposes of facilitating the appellate process who is the friend and who is the culprit? On the one hand is the appellant who technically fails to timely praecipe in writing for a transcript but who nevertheless timely (within 90 days of the ruling on the Motion to Correct Error) files such record and who thereafter without extension of time files his brief. On the other hand is the appellant who though timely and within 30 days praecipes for the record but nevertheless seeks repeated extensions of time for the filing of such transcript and repeated petitions for time to file his brief. The question I believe is rhetorical.
I would overrule the appellee's alternative motion to dismiss or affirm, and would proceed to a determination of the appeal upon its merits.
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