Opinion
No. 1168A193.
Filed October 31, 1969. Rehearing denied December 23, 1969. Transfer denied April 6, 1970.
APPEAL — Denial — Jurisdiction. — An appeals court has no jurisdiction to hear an appeal by an appellant who accepted the benefits of the judgment rendered in the court below. Such an appellant is not a proper party to an appeal.
From the Marion Superior Court, Room No. 3.
Petition for rehearing of dismissal order of appellant's previous appeal.
Denied.
Dean E. Richards, James A. Manahan and DeWitt, Richards and Manahan, all of Indianapolis, for appellant.
Robert Cravens, John P. Price and Hamill Price, all of Indianapolis, for appellee.
On October 31, 1969, this court entered an order dismissing the above-entitled appeal.
On November 7, 1969, the appellant filed a petition for a rehearing of the dismissal order, which rehearing petition alleges in substance as follows:
1. The decision (order) of this court does not state any reasons why the appellant's appeal is being dismissed, and that this is contrary to Article 7, Section 5 of the Constitution of the State of Indiana as made applicable to the Appellate Court by Burns Indiana Statutes, Section 4-209.
From an examination of the petition for rehearing it appears that the appellant is saying in effect that in the event this court sustains a motion to dismiss, it should be sustained with an opinion.
This court is of the opinion that appellant's petition for rehearing of the dismissal order should be denied for the reason that appellant had accepted the benefits of the judgment rendered by the court below from which this appeal was taken, and, therefore, the appellant was not a proper party to this appeal; and not being a proper party to this appeal, this court has no jurisdiction to determine this appeal as it relates to the appellant.
NOTE. — Reported in 253 N.E.2d 715.