Opinion
No. 668A108.
Filed October 22, 1968. Rehearing denied November 26, 1968. No Petition to Transfer filed.
1. APPEAL — Review for Errors of Law — Alternative Remedies. — An action to review for errors of law and an appeal are alternative remedies. p. 430.
2. APPEAL — Review for Errors of Law — Waiver. — The action to review is a substitute for an appeal and the adoption of one remedy is a waiver of the right to prosecute the other. p. 430.
3. APPEAL — Untimely Filing of Appeal — No Appeal on Denial Based on Late Filing. — Where a complaint to review a judgment for errors of law is filed after the time for perfecting an appeal has expired, there may be no appeal from a judgment denying relief to the complainant. p. 431.
From the Superior Court of Marion County, Room 5, Richard P. Watson, Judge Pro Tem.
Appellant, John Morton-Finney, appeals filing an action to review the judgment.
Affirmed. By the Second Division.
John Morton-Finney, of Indianapolis, for appellants.
No appearance for appellee.
A judgment was entered in a quiet title action, quieting title to certain real estate in plaintiff as against the defendants, appellants herein. Appellants' motion for a new trial was overruled, and appellants initiated an appeal by the filing of a praecipe, but the appeal was never perfected and the time for taking an appeal expired. Thereafter, after the time for appeal had expired, appellants filed the present action for a review of the judgment in the quiet title action for alleged errors of law. The action to review was filed more than one year after the date of the overruling of the motion for new trial. A motion to dismiss the action to review was filed by appellee. This motion was sustained and the action to review was dismissed. This appeal is from the judgment of dismissal.
An action to review for errors of law and an appeal are alternative remedies. Acme-Goodrich, Inc. v. Neal, Executor, etc. (1959), 129 Ind. App. 614, 156 N.E.2d 790, 158 1, 2. N.E.2d 299 (Transfer denied). The action to review is a substitute for an appeal, In re Boyer's Guardianship, Rittenour v. Hess (1933), 96 Ind. App. 161, 174 N.E. 714 (Transfer denied), and the adoption of one remedy is a waiver of the right to prosecute the other. Talge Mahogany Co. v. Astoria Mahogany Co. (1924), 195 Ind. 433, 141 N.E. 50, 145 N.E. 495.
Where a complaint to review a judgment for errors of law is filed after the time for perfecting an appeal has expired, there may be no appeal from a judgment denying relief to 3. the complainant. Mathis v. Clary (1968), 142 Ind. App. 154, 231 N.E.2d 157 (Transfer denied); Browne v. Blood (1964), 245 Ind. 447, 196 N.E.2d 745, 199 N.E.2d 712; In re Boyer's Guardianship. Rittenour v. Hess, supra; American Creosoting Co. v. Reddington (1925), 83 Ind. App. 365, 146 N.E. 761 (Transfer denied); Talge Mahogany Co. v. Astoria Mahogany Co., supra.
Appeal dismissed.
Bierly and Smith, JJ., concur.
Cook, P.J., not participating.
NOTE. — Reported in 241 N.E.2d 77.