Opinion
No. 20,246.
Opinion on Motion to Dismiss filed November 10, 1965. Opinion on merits filed October 14, 1968. See Opinion immediately following. Rehearing denied November 20, 1968. Transfer denied March 21, 1969.
APPEAL — Dismissal — Motion to Dismiss. — Inasmuch as appellee acknowledged receipt on motion to dismiss its appeal of one appellant, and has not and does not intend to file any cross-error or cross-appeal against said appellant and that no objection has been filed, opposing said motion, by the other appellant, motion to dismiss as to moving appellant should be granted.
From the Shelby Circuit Court, Harold G. Barger, Judge.
Appellant, American Transport Company, Inc., filed verified motion to dismiss appeal, stating they did not intend to file a transcript or assignment of errors nor a brief and intend to abandon its appeal.
Appeal Dismissed as to Appellant American Transport Co., Inc. By the Court in Banc.
Evan E. Stegar, Ice, Miller, Donadio Ryan, of Indianapolis, for Appellant American Transport Company, Inc.
Wilbur F. Pell, Jr., Pell Matchett, of Shelbyville, Russell E. Stewart, and Stewart Austin, of Anderson, for Appellant The Anderson Banking Company, Administrator of the Estate of James Edward Jones.
Appellant, American Transport Company, Inc., on the 27th day of October, 1965, filed a verified petition with the caption, to-wit, "APPELLANT, AMERICAN TRANSPORT COMPANY, INC. MOTION TO DISMISS", and in support thereof stated that neither a transcript of the record nor a transcript of the evidence has yet been filed; that the American Transport Company, Inc., does not intend to file a transcript or assignment of errors nor a brief, and intends to abandon its appeal.
Said petition further states that the Anderson Banking Company has not as yet filed, nor intends to file, any cross error or cross appeal against the appellant, American Transport Company, Inc.
And, lastly, that appellant, American Transport Company, Inc., in no wise by this petition seeks, in any manner, to affect the appeal now in process by the Central Indiana Railway Company, the other appellant in this cause.
Appellant, American Transport Company, Inc., then prays that the motion to dismiss its appeal be granted and that the same be dismissed.
Said appellee, the Anderson Banking Company, Administrator of the Estate of James Edward Jones, filed or had caused to be filed an acknowledgment of service and affirmation that appellee does not intend to file a cross appeal as to the appellant, American Transport Company, Inc.
The court finds that, inasmuch as the appellee acknowledged receipt of motion to dismiss its appeal of appellant, American Transport Company, Inc., and has not and does not intend to file any cross-error or cross-appeal against said appellant, American Transport Company, Inc., and that no objection has been filed, opposing said motion, by appellant Central Indiana Railway Company, that the motion to dismiss as to American Transport Company, Inc., should be granted;
And the court now dismisses this appeal as to American Transport Company, Inc., with costs taxed against said appellant; that the dismissal of this appeal in favor of American Transport Company, Inc., in no manner affects this appeal as to the other appellant, Central Indiana Railway Company.
Prime, P.J., Carson, Faulconer, Hunter, Mote, Smith and Wickens, JJ., concur.
NOTE. — Reported in 211 N.E.2d 319.