Indiana Board of Beauty Culturist Examiners v. Royal Beauty Academy of Washington

COOK, P. J.

— This is a proceeding for judicial review of a ruling and judgment of the Daviess Circuit Court adverse to appellant, The Indiana Board of Beauty Culturist Examiners.

On July 27, 1966, the trial court found for the appellee and thereupon entered judgment accordingly. The Board filed a motion for new trial on August 17,1966, and on November 21, 1966, the trial court overruled such motion. The Board thereafter filed its transcript and assignment of errors in this court on February 15, 1967.

Supreme Court Rule 2-2 provides in part: “In all appeals and reviews the assignment of errors and transcript of the record must be filed in the office of the Clerk of the Supreme Court (or Appellate Court) within 90 days from the date of the judgment or the ruling on the motion for new trial (whichever is later) unless the statute under which the appeal or review is taken fixes a shorter time, in which latter event the statute shall control. . . .”

The Administrative Adjudication and Court Review Act, Burns’ Ind. Stat. Anno. § 63-3019, clearly states that no motion for new trial shall be permitted prior to appealing the decision of the trial court. Thus, any motion for new trial filed in such an action is a nullity, and such a motion cannot operate to extend the time in which the transcript and assignment of errors must be filed in this court.

Appellant contends that the Administrative Adjudication Act has no application to reviews from The Board of Beauty Culturist Examiners because Burns’ Ind. Stat. Anno. § 63-1824a states that the Administrative Adjudication Act “shall not apply to the board or its action or inaction.”

We find that § 63-1834a does not purport to except the Board of Beauty Culturist Examiners from the appeal provisions of the Administrative Adjudication Act, but only excepts proceedings before the Board. The Beauty Culture Law contains provisions for an “appeal” to a circuit .court, but there are no provisions relating to appeals from circuit courts to this court. Thus, we hold that actions for judicial review from these proceedings are governed by § 63-3019. This is in accordance with the declared intent of the Administrative Adjudication Act that it apply to all administrative determinations except those specifically excepted. Bums’ Ind. Stat. Anno. § 63-3003. State ex. rel. Calumet National Bank v. McCord (1963), 243 Ind. 626, 633-34, 189 N. E. 2d 583.

No matter what view is taken of the remedial statutes, this court does not have jurisdiction of this appeal.

Our Supreme Court said, in the case of City of Plymouth v. Stream Pollution Cont. Bd. (1958), 238 Ind. 439, 445, 151 N. E. 2d 626,

“As there is no trial in the usual sense upon the judicial review, there can be no basis for asking for a new trial. . .”

See also: Indiana Alcoholic Bev. Comm. v. B & T Distributors, Inc. (1967), 141 Ind. App. 343, 228 N. E. 2d 35.

As the transcript and assignment of errors were not filed with the Clerk of the Supreme and Appellate Courts within ninety days from the date of the judgment of the trial court, appellee’s motion to dismiss, heretofore filed in this cause, is well taken.

Even if this court did have jurisdiction of this proceeding, and we specifically hold we do not have such jurisdiction, the transcript of the record before us does not contain a bill of exceptions, signed by the trial judge. The record is further deficient in that it fails to' show by order book entry, a file mark, or certificate of the clerk of the Daviess Circuit Court that the bill of exceptions was filed with such clerk.

Supreme Court Rule 2-3 provides that . . Every bill of exceptions tendered prior to the filing of the transcript in the appellate tribunal shall, if correct, be signed by the judge and filed with the clerk, which filing may be evidenced by an order book entry or the clerk’s certificate. . .

The clear provisions of this Rule are mandatory. A document which purports to be a bill of exceptions not signed by the trial judge presents no questions based upon the purported bill. Nutting v. Wilcox (1967), 140 Ind. App. 368, 223 N. E. 2d 501, 10 Ind. Dec. 45.

The principal questions sought to be presented in this appeal require an examination of the bill of exceptions in order to determine “whether or not the appellant has conformed to the proper procedural methods, and whether its decision is supported by substantial evidence.”

Without the evidence before us we must presume in favor of the findings and judgment of the trial court.

The only assignment of error relied upon by appellant which does not require an examination of the evidence, is the action of the trial court in sustaining appellee’s demurrer to appellant’s plea in abatement. Appellant’s plea alleged improper venue.

We find that the trial court did not err in sustaining appellee’s demurrer. It is acknowledged that a plea in abatement is not favored by the courts. The appellant’s plea did not meet the statutory requirements imposed by Burns’ Ind. Stat. Anno. § 2-1034; and further, did not meet the duty imposed upon it to anticipate and exclude every possibility of venue being in Daviess County. .

Appeal dismissed.

Carson, C. J., Pfaff, Cooper and Faulconer, JJ., concur;

Bierly, J., dissents with opinion, with Prime and Smith, JJ., concurring.