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133 Ind. App. 365

179 N.E.2d 298

Opp v. Davis

Indiana Court of Appeals

Decided January 23, 1962

Indiana Court of Appeals · decided 1962-01-23

Relies on Automobile Underwriters, Inc. v. Smith

Good law ✅— No negative treatment on recordhow we know

Decided 1962-01-23

How this case has been cited

Cited by 23 later decisions — most recently May 1991

23 state decisions

601962197019801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1On Petition for Rehearing

Kelley, P. J.

¶2Appellee’s Petition for Rehearing consists of thirteen (13) specifications. The appellant filed his motion to dismiss said rehearing petition on the ground that the same does not comply with the provision of Rule 2-22 of the rules of the Supreme Court that:

“Applications for a rehearing of any cause shall be made by petition, separate from the briefs, . . . stating concisely the reasons why the decision is thought to be erroneous.” (Our emphasis).

¶3It is appellant’s contention that twelve of said specifications consist of appellee’s conclusion that quoted statements of our opinion are erroneous but that none of said specifications states the “reason” why such portions of the opinion are erroneous, as required by said Rule 2-22.

¶4*376In Automobile Underwriters, Inc. v. Smith (1961), 241 Ind. 302, 171 N. E. 2d 823, on page 825, the Supreme Court said:

“Under the above rule, alleged errors in the opinion, which are assigned as cause or grounds for rehearing, must be supported by a statement which concisely states ‘the reasons why the decision is thought to be erroneous.’ Rule 2-22. The rule contemplates that, in this manner, the court shall be aided in its consideration of the petition. Consistent with the purpose of the rule, alleged errors in the opinion, not supported by a concise statement of the reasons in support thereof, are considered waived. . . .” (Emphasis supplied).

¶5In her memo on appellant’s motion to dismiss the rehearing petition, appellee, after an expression as to specifications 5, 6 and 7 and how specification 9 is amplified by specifications 8 and 10 and specification 12 is amplified by specification 13, says: “Thus even if this court should determine that the alleged error made by certain statements in the opinion and decision of this court are not properly in compliance with Rule 2-22, this Court has before it specifications numbers 1, 2, 3, 4, 9, 11, and 13 which do sufficiently comply with the Rule . . . .” We are of the opinion that specifications 5, 6, 7, 8, 10, and 12 are insufficient to meet the requirements of Rule 2-22.

¶6It therefore becomes necessary only to consider and determine upon the sufficiency of the remaining specifications. We shall consider them in numerical order.

¶71. This specification asserts that we erroneously decided a “new and novel question of law” as to what constitutes a petition for a “New Hearing” under the statute. Burns’ 3-640. No reason is given as to why the decision on the referred to question is claimed to *377be “new” or “novel” nor why appellee thinks it to be “erroneous.”

¶8Specifications 2 and 3 are to the same practical effect and may be considered together. By these specifications appellee says we erred in stating that the provisions of the Civil Code, as to motions for a new trial, do not apply to Juvenile Court matters or to motions for a New Hearing under Burns’ §3-640. No reasons are given or stated which indicate why or in what way we erred, as asserted. Specifications 2 and 3 are insufficient to comply with the requisites of said Rule 2-22.

¶9Specification 4 asserts that our opinion contravenes the “ruling precedents” as “announced” by certain cited cases decided by this court. What the “ruling precedents” were that we are alleged to have contravened are not stated. This specification fails to meet the requirement of said Rule 2-22 and, furthermore, fails to show any contravention by us of any ruling precedent.

¶10Specification 9 charges that we erred in our opinion by “granting the greatest latitude in paternity procedure to extend in favor of the putative father” who never denied the charge and held as “against the consequent protection and welfare of the guiltless children.” The foregoing statement is but the conclusion of appellee herself and no parts of our opinion which appellee may think supports said conclusion are cited, referred to or quoted. Appellee’s said self-assumed conclusion as to the construction and interpretation to be given our opinion does not constitute a concise reason why our opinion is thought to be erroneous within the meaning of said Rule 2-22. It is clear that this specification does not comply with said Rule 2-22.

¶11*378Appellee’s specification 11, in effect, states that we erroneously held that the legislature having enacted the provision for a blood test in paternity cases, §3-658, Burns’ 1961 Cumulative Supplement, the record in this case seems to not only justify, but render essential, the making of such a test, whereas the said statute provides for such a test “only upon the motion of either of the parties”; and that we do not have the power sua sponte to make such an order. We make no such holding and we did not “sua sponte,” or otherwise, make any such order. In our opinion we stated:

“The record does not disclose that such blood test was made in this case, although the record here seems such as to not only justify but to render essential the making of such a test. ... It is not our prerogative to order, direct, or, perhaps, even to suggest that either or both of the parties hereto take advantage of the provisions of said §3-658, Burns’ 1961 Cum. Suppl., for scientific contribution to the herein disputed issue, but we may observe that such action would be no doubt of much assistance to the court in its solution of this precarious matter.”

¶12Although, with a rather broad view of the rule, it may be loosely stated that this specification 11 could be said to fall within the requirement of said Rule 2-22, yet it does not accurately allege or specify our true holding, as we have above demonstrated. It follows that this specification furnishes no ground for a rehearing.

¶13Specification 13 is long and indefinite. It does not charge that we erred in anything or that our opinion was erroneous for any reason. Since we are not here charged with any error or erroneous ruling, nor are any concise reasons given by which “the court shall be aided in its consideration of the petition” (Auto*379mobile Underwriter’s, Inc. v. Smith, supra),we are forced to conclude that this specification 11 does not comply with said Rule 2-22.

¶14Having considered the various specifications of appellee’s petition for a rehearing, we are of the opinion that only specification 11 in any way or manner tends to comply with said Rule 2-22 and that said specification furnishes no ground for granting a rehearing.

¶15For the reasons above expressed, we must hold, in accordance with the holding in said Automobile Underwriters, Inc. v. Smith, supra,that specifications 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12 and 13 of appellee’s said petition for a rehearing “are considered waived” and present no ground for a rehearing. As to said specification 11, appellant’s motion to dismiss is denied.

¶16Appellee’s petition for a rehearing, predicated upon the remaining specification 11, is denied.

¶17Note. — Reported in 179 N. E. 2d 298. Rehearing denied 180 N. E. 2d 788.

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