Summary
In Roebuck v. Essex, Admx. (1938), 214 Ind. 637, 638, 17 N.E.2d 469, we said, "The purpose of Rule 1 (1937 Revision) was to reduce the maximum time for appeals. The rule must be treated as controlling all appeals except those governed by statutes fixing a shorter time."
Summary of this case from Anderson v. LagowOpinion
No. 27,148.
Filed November 29, 1938.
1. APPEAL — Proceedings for Transfer — Time for Perfecting Appeals Generally — Court Rules — Statutes Superseded. — Rule of the Supreme Court reducing the maximum time for appeals generally to 90 days held controlling in all appeals except those governed by statutes fixing a shorter time. p. 638.
2. APPEAL — Proceedings for Transfer — Time for Perfecting Appeals Generally — Appeals Involving Decedents' Estates — Court Rules. — Court rule reducing maximum time for appeals generally to 90 days held applicable to an appeal involving a decedent's estate and to supersede statute allowing 30 days to file appeal bond and 90 days thereafter to file the transcript. p. 638.
3. COURTS — Supreme Court — Rules of Court — Construction — Annotations as Affecting. — Statement in printed rules of the Supreme Court that particular rule superseded a specified statute was a mere annotation and did not limit application of the rule to the statute named. p. 638.
From Allen Circuit Court; William P. Endicott, Special Judge.
Action between Wesley S. Roebuck and another and Edith M. Essex, Administratrix of the Estate of Nelson S. Essex, deceased. From a judgment for the latter, the former appealed. Transferred from the Appellate Court under § 4-209 Burns 1933. Appeal dismissed.
H.A.S. Levering, for appellants.
Chester L. Teeter, for appellee.
This appeal involves a claim against a decedent's estate.
The transcript and assignment of error was filed in the office of the clerk of this court 98 days after the date of judgment. The appellee has interposed a motion to dismiss the appeal for the reason that it was not perfected within 90 days as required by Rule 1 of this court.
The appellants contend that the appeal is governed by section 3 of chapter 36 of the Acts of 1913 (Acts 1913, p. 65), section 6-2002 Burns' Ann. St. 1933, section 3278 Baldwin's Ind. 1, 2. St. 1934, which provides for appeals in matters connected with a decedent's estate. The provision of the section is that, when an appeal is prayed, an appeal bond shall be filed within 30 days, and the transcript shall be filed in the Supreme Court within 90 days after filing the appeal bond. The purpose of this statute was to provide a shorter time for taking appeals in matters involving a decedent's estate than was permitted in appeals generally. At the time the statute was enacted, the general appeal statute provided a maximum of 180 days for the taking of appeals. The purpose of Rule 1 was to reduce the maximum time for appeals. The rule must be treated as controlling all appeals except those governed by statutes fixing a shorter time.
The appellants call attention to the fact that, in the printed rules, at the end of Rule 1, there appears the following: "(This supersedes Sec. 640, Ch. 38, Acts of 1881 as amended by 3. Sec. 2, Ch. 36, Acts of 1913)," and argue that they were led to believe that no other statute was superseded. The statement is no more than an annotation, and, when the established policy of requiring that appeals affecting decedents' estates be taken in a shorter time than appeals generally is considered, it cannot reasonably be concluded that the new rule was intended to change that policy, and permit a greater delay in matters involving a decedent's estate than in appeals generally.
The motion is sustained, and the appeal dismissed.