Louisville, New Albany & Chicago Railway Co. v. Carmon

On Petition for Rehearing.

Wiley, J.

Appellee has filed what purports to be a petition for a rehearing. The paper so filed is indorsed as follows: “Appellee’s motion and brief for a rehearing.” The paper filed, in our judgment, is nothing more than an additional argument on the merits of the case. The motion and brief are one and the same thing, and in the beginning it is said: “The appellee in the above entitled cause moves the court for a rehearing in said case, and in support thereof assigns the following reasons: We believe that the court committed an error in reversing the judgment of the lower court.” This is the only reason assigned for a rehearing, and appellee’s brief on the motion immediately follows. True, a petition for a rehearing, and brief in support thereof may be presented together under our practice, although the particular points upon which the rehearing is asked, must be stated in the petition. Elliott’s Appellate Procedure, section 555; Fertich v. Michener, 111 Ind. 472.

Among other things, rule thirty-six of this court provides: “Rehearing must be applied for by petition in writing, setting forth the cause for which the judgment is supposed tó be erroneous.” Section 662, Horner’s R. S. 1897, provides that within sixty days after a case has been determined in the Supreme Court, either party may file a petition for a rehearing, etc. Rule thirty-seven of the Supreme Court is identical on the question of a petition for a rehearing as rule thirty-six of this court, and the statute and rule have frequently been construed by that court. It will be observed that both the statute and the rule contemplate the filing of a petition, and *480the rule provides that the petition shall set forth the “cause for which the judgment is supposed to be erroneous.” A petition for a rehearing is a pleading, under the rules of appellate procedure, and must be so regarded by the courts. Baltimore, etc., R. W. Co. v. Coneyer, 149 Ind. 524. In this case no distinct or separate petition for a rehearing has been filed, but appellee has contented himself by filing a brief, and asks the court to grant him a rehearing because the court committed an error in reversing the judgment of the lower court.

In his Appellate Procedure, Judge Elliott, see. 555, says: “The office of a petition for a rehearing is to specifically present points for the consideration of the court. A general statement that the court erred in the conclusions asserted in its opinion is insufficient. The petition should state what conclusions counsel suppose to be erroneous, * * * the particular points must be stated in a petition. General statements will be unavailing, and assertions cannot supply the place of argument and authorities.” In Goodwin v. Goodwin, 48 Ind. 584, the court said: “The office of a petition for a rehearing is not to request the court generally to re-examine the questions in the record, or all the questions decided against the party filing it, but it is to point out particularly the errors the court is supposed to have committed in the decision which it has made.” See, also, Western Union Telegraph Co. v. Hamilton , 50 Ind. 181; Ferlich v. Michener, 111 Ind. 472. In Baltimore, etc., R. W. Co. v. Conoyer,supra, the court said: “A petition for a rehearing, under the rules of appellate procedure, is a pleading, and not a mere argument, or brief, as is the paper in this case which is denominated a petition.”

In Reed v. Kalfsbeck, 147 Ind. 148, the court said: “Appellees have filed a motion to reject what purports *481to be a petition for a rehearing filed by the appellant in this cause, for the reason that it fails to conform to rule thirty-seven of this court, in not setting forth the cause for which the judgment of reversal is supposed to be erroneous. The petition in question is nothing more than an argument, in support of the original contention of the appellant and does not state any particular cause or errors by reason of which the decision of the court, as heretofore announced, is supposed to be erroneous. It is the office of a petition for a rehearing to state or point out wherein the court erred in the result reached upon the original hearing. The requirement of rule thirty-seven conforms to good practice, and should be, strictly enforced. See Goodwin v. Goodwin, 48 Ind. 584; Western Union Telegraph Co. v. Hamilton, 50 Ind. 181; Fertich v. Michener, 111 Ind. 472, 486; Elliott App. Proc., sections 555, 893. Parties and their counsel, in appeals to this court, are bound to keep in mind the rules which control the procedure therein, and are required to yield obedience and conform thereto. Harness v. State, 143 Ind. 420.” In Finley v. Cathcart, 149 Ind. 470, it was said: “A petition for a rehearing, in this court, is a pleading, and should not be an argument, and in order that it may conform to the rule of appellate practice, as it seems to be settled by repeated adjudications of this court, it must state specifically the errors w'hich the petitioner considers the court committed in the result reached in the former hearing, and general statements, or assertions, that the decision is erroneous, will not suffice. An applicant for a rehearing should include in his petition all the grounds upon which he bases his claim for a rehearing, and those not included therein, will be deemed by the court to have been waived, and will not be considered. The *482álleged petition herein, for the reasons which we have stated, does not comply with the rule as required, and consequently presents no question for review.”

Under the uniform decisions and rule thirty-six of this court, the paper filed by appellee in this cause, and designated by indorsement on the back “Appellee’s motion and brief for a rehearing,” does not present any question for review, for the reason that it does not specify the particular causes, or any particular cause, on account of which the opinion heretofore announced is supposed to be erroneous. It is therefore overruled.