Opinion
No. 15,024.
Filed November 24, 1933.
1. APPEALS — Not Perfected Within Term — Vacation Appeal — Notice. — Where no appeal was prayed for or granted during the term at which judgment was rendered, no appeal bond fixed, no surety named or approved, and no time given within which to file an appeal bond, a subsequent appeal could only be a vacation appeal requiring notice to the adverse party. p. 597.
2. APPEALS — Vacation Appeal — Notice to Appellee — Dismissal For Failure to Give Notice. — Where vacation appeal remained on the dockets of the Appellate Court for more than ninety days with no attempt to bring appellee into court by the giving of proper notice, the appeal was dismissed. (Appellate Court Rules, Rule 36.) p. 597.
From Marion Superior Court; John W. Kern, Judge.
Action by Otto E. Wente against American Aggregates Corporation and another. From a judgment for plaintiff, defendants appealed. Appeal dismissed. By the court in banc.
Clinton H. Gavin and Julius C. Travis, for appellants.
Carey Cox, for appellee.
From a judgment in favor of appellee against appellants, rendered April 10th, 1933, appellants, on May 10th, 1933, prayed an appeal to this court which was granted by the trial court upon appellants' filing an appeal bond in the sum of $10,000.00 within thirty days from said last mentioned date, with the United States Fidelity and Guaranty Company as surety thereon, which bond was approved by the court.
Section 1532 of Burns Annotated Indiana Statutes, 1926, fixes the term of the Marion Superior Court and reads as follows: "The terms of said court shall commence on the first Monday of each month, except the months of July and August; but terms of said court may be held in said months for the transaction of business pending in said court, if directed by said court at a general term; and the terms of said court shall be called after the different months in which they are held, and they may be continued and held from the time of their commencement every day (Sundays excepted) until and including the Saturday before the first Monday of the succeeding month."
Inasmuch as during the April term of said trial court no appeal was either prayed for or granted, no appeal bond fixed, no surety named or approved and no time fixed within which to file an 1. appeal bond the appeal herein attempted could only be a vacation appeal and notice thereof to the adverse party is required.
The record does not disclose that notice of appeal has been given to the appellee, and this cause has been on the docket of this court for more than ninety days with no attempt having 2. been made to bring appellee into court. Special appearance has been entered by the appellee for the purpose of filing a motion to dismiss and under Rule 36 of this court such motion is now sustained and appeal dismissed.