McGuirev.Review Board of the Indiana Employment Security Division

Court of Appeals of IndianaJun 7, 1951
121 Ind. App. 377 (Ind. Ct. App. 1951)
121 Ind. App. 37799 N.E.2d 263

No. 18,212.

Filed June 7, 1951.

1. APPEAL — Appellate Jurisdiction — Time Limitations — Transcript and Assignment of Errors Must Be Filed Within Time Limited by Statute or Rule. — An appeal must be taken within the time limited by statute or rule, and unless the transcript and assignment of errors is filed within the time allowed, there is no cause in the appellate tribunal and the appeal will be dismissed, merely taking some steps in that direction being insufficient. p. 380.

2. APPEAL — Appellate Jurisdiction — Time Limitations — Excuses for Delay — Relief From Failure To Comply — Appellant Must Be Free From Negligence. — While an appellate tribunal, by virtue of its inherent power, may grant an appeal filed after the time limitation established by statute or rule upon proper application showing the delay to have been caused by accident, excusable mistake or by the appellee's violence or fraud, this extraordinary power never will be exercised except where the appellant presents a meritorious case in which he has been free from negligence, and the appellee's conduct or the accident or mistake relied upon has been clearly established. p. 380.

3. APPEAL — Appellate Jurisdiction — Time Limitations — Excuses for Delay — Reliance on Deputy Court Clerk's Interpretation of Statute Insufficient. — Reliance by appellant's counsel upon the advice of a deputy clerk of the Supreme Court in interpreting the statute limiting the time for appeal in an unemployment compensation case is not such an excuse for the failure to file the transcript and assignment of errors within thirty days from the notice of intention to appeal as would warrant the Appellate Court to grant relief from the failure to appeal within the allotted time. Burns' 1951 Replacement, § 52-1542k.p. 381.

4. APPEAL — Appellate Jurisdiction — Time Limitations — Excuses for Delay — Mistake — Must Be Mistake of Fact. — The mistake for which relief may be granted from the failure to appeal within the time allotted by statute or rule must be one of fact and not one of law. p. 381.

5. APPEAL — Appellate Jurisdiction — Time Limitations — Excuses for Delay — Excuse Insufficient — Appeal Dismissed. — Where the counsel for the appellant in an unemployment compensation case, in reliance upon a statement by a deputy clerk of the Supreme Court, failed to file the transcript and assignment of errors within thirty days after the giving of notice of intention to appeal as required by statute, the mistake was one of law, not one of fact, and did not justify the delay, so that the appeal would be dismissed on motion by the appellees. Burns' 1951 Replacement, § 52-1542k.p. 381.

From the Review Board of the Indiana Employment Security Division.

Proceeding by Dorothy P. McGuire for benefits under the Indiana Employment Security Act. From a decision denying benefits, she attempts to appeal.

Appeal dismissed. By the court in banc.

Richard L. Wilder, of Bloomington, for appellant.

J. Emmett McManamon, Attorney General, and Glen F. Kline, Deputy Attorney General, for appellees.


ON MOTION TO DISMISS APPEAL


On February 15, 1951, the Review Board entered its decision against appellant on her claim for benefits under the Indiana Employment Security Act. Such decision was mailed to all interested parties on February 20, 1951. Appellant, within a period of fifteen days thereafter, filed her notice of an intention to appeal such decision.

Section 52-1542k, Burns' 1951 Replacement, provides that: "Either party to the dispute may, within thirty (30) days after notice of intention to appeal as herein provided, appeal the decision to the Appellate Court for errors of law under the same terms and conditions as govern appeals in ordinary civil actions."

It was not until May 15, 1951, (sixty-nine days after notice of intention to appeal) that appellant submitted the transcript and assignment of errors for filing. No extension of time within which to file the transcript and assignment of errors was requested or granted.

Appellant, in opposing appellees' motion to dismiss, seeks to show that the failure to file within the statutory time was due to accident and excusable mistake of appellant's counsel.

It is shown by affidavit that on April 5, 1951, two days prior to the expiration of the time for filing the transcript and assignment of errors, appellant's counsel appeared in the office of the Clerk of the Supreme Court with such documents in his possession and with the intention of then and there filing the same. Feeling that it was necessary to file said documents within thirty days from the date of the notice of intention to appeal, and knowing that but two days yet remained before such deadline, and being desirous of utilizing the fullest of time allotted, he inquired of a deputy clerk as to the practice relating to the filing of appeals. The deputy clerk informed him that while he could file the transcript and assignment of errors at that time, there was no need to do so immediately or on the 7th day of April, 1951, and that filing on that day would make the briefs thereupon due within thirty days from that day; that the deputy clerk did not believe that the thirty day requirement overrode the rules of the court. Appellant's counsel relied upon this statement, and did not file the documents and perfect the appeal within the time allowed.

It is uniformly held that an appeal must be taken within the time limited by statute or rule. It is not sufficient to merely take some steps in that direction. Unless the transcript 1. and assignment of errors is filed within the time allowed there is no cause in the appellate tribunal, and the appeal will be dismissed. Brady v. Garrison (1912), 178 Ind. 459, 99 N.E. 738; Smythe v. Boswell (1889), 117 Ind. 365, 20 N.E. 263; The Bank of Westfield v. Inman et al. (1892), 133 Ind. 287, 32 N.E. 885; Board of Com'rs of Vigo County et al. v. The City of Terre Haute (1897), 147 Ind. 134, 46 N.E. 350; Barr v. Allen (1940), 217 Ind. 489, 29 N.E.2d 316.

It has been said, however, that where an appellee, by violence or fraud, has prevented appellant from perfecting his appeal in time, or where appellant's failure to perfect his appeal 2. was due to accident or excusable mistake, the appellate tribunal may grant an appeal on a proper application, by virtue of its inherent power. But this extraordinary power will never be exercised except where appellant presents a meritorious case, in which he has been free from negligence, and appellee's conduct or the accident or mistake relied on is clearly established. Brady v. Garrison, supra; Smythe v. Boswell, supra; The Bank of Westfield v. Inman et al., supra; Hutts et al. v. Martin (1892), 131 Ind. 1, 30 N.E. 698, 31 Am. St. 412; Hurst v. Hawkins (1907), 39 Ind. App. 467, 79 N.E. 216, 80 N.E. 42; Masters v. Abbitt (1912), 51 Ind. App. 429, 99 N.E. 815; Coxe Bros. Co. v. Foley (1915), 58 Ind. App. 584, 107 N.E. 85; Tate v. Hamlin et al. (1895), 149 Ind. 94, 41 N.E. 365, 41 N.E. 1035; In re Ale (1917), 66 Ind. App. 144, 117 N.E. 938; State ex rel. Barnes v. Howard (1946), 224 Ind. 107, 65 N.E.2d 55.

The only question here is whether there was excusable mistake which caused appellant to fail to perfect her appeal in time. No "accident" is shown.

It was said in Fishback v. Public Service Comm. (1923), 193 Ind. 282, 138 N.E. 346, 139 N.E. 449, that, "Ordinarily, the Supreme Court will do all that is possible to save an appeal where the parties have relied on acts of the court or its officers, which were done without lawful authority."

We do not believe, however, that a lawyer is entitled to rely upon the advice of a deputy court clerk interpreting the statutes of this state or the rules of court. Vaughan v. Walters 3. (1869), 3 Ky. Op. 460; Chicago, R.I. P.R. Co. v. Sporer (1904), 72 Neb. 372, 100 N.W. 813; Fort v. White (1915), 58 Ind. App. 524, 108 N.E. 27.

Moreover, the mistake for which relief may be granted must be one of fact, and not, as here, one of law. Chicago, etc., R. Co. v. Priddy (1917), 65 Ind. App. 552, 108 N.E. 238, 4, 5. 115 N.E. 266.

The motion to dismiss the appeal is sustained.

Appeal dismissed.

NOTE. — Reported in 99 N.E.2d 263.