DISSENTING OPINION For reasons which are hereinafter stated it is my opinion that no questions are treated in appellant's brief as is required by paragraph 6, Rule 18 of this court. If this court were authorized to ignore such rule and to consider this case on its merits I could and would readily concur in the majority opinion of this court in this cause which opinion is dated April 17, 1940.
On November 7, 1939, this court filed its opinion in this cause wherein this court held that appellant had failed to present any questions in its brief in compliance with Rule 18 of this court and affirmed the award *Page 349 of the Industrial Board for that reason. (See 22 N.E.2d 288.)
On January 8, 1940, appellee's petition for rehearing herein was denied by this court.
On March 27, 1940, this court, on its own motion, by a majority thereof, withdrew said opinion and reinstated this appeal. Said opinion of this court filed November 7, 1939, was in accord with the ruling of our Supreme Court in Phend v. Milk Control Boardof Indiana (1938), 213 Ind. 359, 12 N.E.2d 114 wherein the same rule of court was involved. No other cases had been finally decided by our Supreme Court or by this court prior to November 7, 1939, when said opinion of this court was filed, or prior to January 8, 1940, when said petition for rehearing was denied, wherein said Rule 18 (adopted June 21, 1937) was involved and wherein the discussion with reference to said rule was applicable to the instant case. This court was bound to follow said reasoning in Phend v. Milk Control Board of Indiana, supra.
On February 5, 1940, our Supreme Court filed an opinion in this cause (24 N.E.2d 1002) in which it said ". . . It appears the Appellate Court has erroneously construed this rule (Rule 18supra)." The Supreme Court discussed said rule in that opinion and concluded as follows: "It cannot be determined from the opinion (of the Appellate Court in this cause, adopted November 7, 1939) that the brief contains any argument elaborating the propositions, points or authorities but, if the application ismade under the heading `Argument,' and not under each proposition, point or authority, then the opinion is erroneous. This court cannot look to the record of the appellant's original briefs for confirmation of this fact. Its search is limited to the face of the opinion. It therefore follows *Page 350 that the petition to transfer must be and is denied." (My italics.)
Appellant's original brief does not comply with said Rule 18as construed by the Supreme Court in its said opinion filed inthis cause. Appellant's brief does contain an argument but nowhere in said argument and nowhere in the brief are the "points and authorities . . . applied to the question sought to be presented." Rule 18, supra.
Said rule further provides "Assigned errors not treated as herein directed shall be deemed as waived." Said rule is binding upon this court as well as upon the litigants. The sole error assigned, not having been "treated" in appellant's original brief as directed by Rule 18, supra, said error should have been deemed by this court to have been waived and the award of the Industrial Board should have been affirmed for that reason.
Bridwell, C.J., concurs in this opinion.
NOTE. — Reported in 27 N.E.2d 386.