Billhymer v. Peerless Corp.

Full title: BILLHYMER v. PEERLESS CORPORATION

Court: Court of Appeals of Indiana

Date published: Dec 16, 1965

138 Ind. App. 174 (Ind. Ct. App. 1965)

212 N.E.2d 403

Opinion

No. 20,480.

Filed December 16, 1965.

APPEAL — Motion to Dismiss — Extension of Time — Not Filed Within 90 Days. — Motion to dismiss would be sustained where no extension of time had been granted and no motion for extension of time was filed within 90 day period as provided by Supreme Court Rule. Rule 2-2 of the Supreme Court.

From the Marion Circuit Court, French M. Elrod, Special Judge.

Appellant, Mary Billhymer, filed her petition for extension of time and thereafter appellee filed its objections to the petition for extension of time and a motion to dismiss the appeal. Appeal dismissed. By the court in banc.

Evelyn Pitschke, of Indianapolis, for appellant.

Kirkwood Yockey and Yockey Yockey, of Indianapolis, for appellee.

PER CURIAM.

On November 19, 1965 appellant filed her petition for extension of time to file transcript and assignment of error. Therein it is alleged that a motion for new trial was overruled by the trial court on August 25, 1965.

Thereafter on November 23, 1965 appellee filed in this court objections to the petition for extension of time and has combined therewith a motion to dismiss the appeal. Appellee shows that the motion for new trial was in fact overruled by the Circuit Court of Marion County on August 10, 1965. To these objections and this motion appellant has not replied although the record shows service of the same on appellant's counsel by registered mail.

We are compelled to take the showing by a certified copy of the record of the Marion Circuit Court as establishing that the motion for new trial was overruled on August 10, 1965.

There have been no extensions of time granted, and no motion having been filed within the 90 day period provided by our Supreme Court Rule 2-2, this court has no jurisdiction except to sustain the objections to further extension of time and to sustain the motion to dismiss. Taylor et al. v. Meskimen et al. (1955), 234 Ind. 485, 488, 128 N.E.2d 872; Brindle v. Anglin (1965), 246 Ind. 601, 208 N.E.2d 476, 477.

The appeal is therefore dismissed.

NOTE. — Reported in 212 N.E.2d 403.