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State v. Baker

Supreme Court of Indiana
Apr 19, 1963
243 Ind. 637 (Ind. 1963)

Opinion

No. 30,214.

Filed April 19, 1963.

1. APPEAL — Notice of Petition for Extension of Time to File Briefs — Service of Notice by Attorney in Related Case. — Rule 2-16 of Supreme Court providing for service of notice of petition of time within which to file brief is mandatory and the court will not assume that attorneys in related cases will deliver to attorneys in other related cases notices which have been improvidently served upon them. p. 639.

2. APPEAL — Briefs Not Timely Filed — Dismissal. — Since appellant's brief was not timely filed within the time prescribed, or thereafter within any valid extension of time for such filing, the appeal is dismissed. p. 639.

From the Vanderburgh Circuit Court, Ollie C. Reeves, Judge.

Appellees, Fred O. Baker, and Automatic Amusement Company, Inc., filed motion to quash affidavit charging them with embezzlement, which motion was sustained. Appellant, State of Indiana, appeals.

Appeal dismissed.

Edwin K. Steers, Attorney General, Harriette Bailey Conn and Carl E. Van Dorn, Deputy Attorneys General, for appellant.

Ole J. Olsen, Olsen Niederhaus and Milford M. Miller, all of Evansville, for appellees.


Appellees were charged by affidavit in four counts of embezzlement of property under a trust receipt transaction. The appellees separately filed motions to quash the affidavit, which motions were sustained. Thereupon the state filed this appeal.

Upon submission of its appeal by the filing of a transcript of the record, appellant filed a petition for extension of time within which to file its brief. However, the notice of appellant's petition for extension of time was not served upon appellees or their counsel prior to the filing of said motion, or at any time, as required by Rule 2-16. Instead, notice was served upon counsel for another defendant in a different cause of action growing out of the same transaction in which appellee Baker was co-defendant. Because of the failure of service of notice, the appellees have each filed their separate motions in this court to dismiss or affirm the appeal.

Appellant urges that the service of notice given should be considered to have been a good-faith attempt to serve notice upon appellees' counsel, which we must assume resulted in actual notice to appellees' counsel. The material portion of Rule 2-16 provides:

"Notice of the application and a copy of the petition shall be served upon the opposite party or his counsel at any time before filing, and proof of service shall be filed with the petition. . . ."

The above cited portion of Rule 2-16 is mandatory. We cannot make compliance therewith dependent upon the assumption that attorneys in related cases will 1. deliver to attorneys in other related cases notices which have been improvidently served upon them.

Since appellant's brief was not timely filed within the time prescribed, or thereafter within any valid extension of 2. time for such filing, the appeal is dismissed.

"The appellant shall have 30 days after submission in which to file his brief, and if the brief is not filed within the time limited the clerk shall enter an order dismissing the appeal, unless a petition for extension of time is on file. . . ." Supreme Court Rule 2-15.

Jackson, C.J., Arterburn, Landis and Myers, JJ., concur.

NOTE. — Reported in 189 N.E.2d 581.


Summaries of

State v. Baker

Supreme Court of Indiana
Apr 19, 1963
243 Ind. 637 (Ind. 1963)
Case details for

State v. Baker

Case Details

Full title:STATE OF INDIANA v. BAKER ET AL

Court:Supreme Court of Indiana

Date published: Apr 19, 1963

Citations

243 Ind. 637 (Ind. 1963)
189 N.E.2d 581