Opinion
No. 17,393.
Filed August 31, 1945.
APPEAL — Time for Perfecting — Failure to Perfect — Dismissal. — Where assignment of errors and transcript of record were not filed in the Appellate Court until more than 90 days after the ruling on the motion for new trial, and appellant had filed no motion or petition for an extension of time in which to file the transcript, the appeal was dismissed.
From the Marion Superior Court, Room No. 3; Emsley W. Johnson, Jr., Judge.
Action between George B. Keller, doing business under the name of Keller's Irvington Texaco Service, and Harry D. Hatfield. From the judgment entered, George B. Keller appealed, and thereafter Harry D. Hatfield filed a motion to dismiss the appeal.
Appeal Dismissed. By the court in banc.
Raymond Demaree, of Indianapolis, for Appellant.
Clyde B. Miller, of Indianapolis, for Appellee.
Appellee, on July 14, 1945, filed his motion to dismiss this appeal for the reason the assignment of errors and transcript of the record were filed in this court more than 90 days after the trial court overruled appellant's motion for a new trial. Appellant has not filed a brief or other answer in opposition to this motion.
The record discloses that after judgment the trial court overruled appellant's motion for a new trial March 13, 1945. The assignment of errors and transcript were filed in this court on June 13, 1945, ninety-two days after the ruling on the motion for a new trial. Appellant filed no motion or petition for an extension of time in which to file the transcript. Rule 2-2, Rules of the Supreme Court of Indiana, provides in part as follows:
"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 within 90 days from the date of the judgment or the ruling on the motion for a new trial, unless the statute under which the appeal or review is taken fixes a shorter time, in which latter event the statute shall control."
Appellant, having failed to comply with this rule, appellee's motion to dismiss must be sustained. Bard v. Cline (1942), 111 Ind. App. 146, 40 N.E.2d 996.
Therefore, this appeal is dismissed.
Note. — Reported in 62 N.E.2d 400.