Opinion
No. 17,616.
Appeal dismissed October 10, 1947. Rehearing denied January 16, 1948.
APPEAL — Time for Perfecting Appeal from Action of Dismissal Must be Perfected in Ninety Days. — An appeal by plaintiffs' attorneys from the overruling of a motion to set aside the dismissal of an action must be perfected within ninety days from the date of the dismissal of the action or the appeal is too late as the Appellate Court does not have jurisdiction.
From the Marion Superior Court Room, No. 4; Carl Wilde, Special Judge.
An action for annulment by Edith Parker against Jacob Reiss was dismissed by the plaintiff in vacation, and H.K. Bachelder and others, who were plaintiffs' attorneys, filed petition for attorney fees and the court dismissed the action the next day. The plaintiffs' attorneys filed a petition to set aside the dismissal. From a judgment overruling the petition to set aside the dismissal of the action, the plaintiffs' attorneys appealed.
Motion to dismiss the appeal sustained. By the court in banc.
Bachelder, Bachelder, and Fife, of Indianapolis, attorneys for appellant. Earl A. Kightlinger, Paul G. Davis, and Herbert E. Wilson, all of Indianapolis, attorneys for appellee.
This appeal is undertaken from the the ruling of the trial court below on a motion to vacate and set aside a judgment. The action in which the original judgment was entered was a suit for annulment brought by Edith Parker, plaintiff, in her maiden name against Jacob Reiss, defendant, and was based upon an alleged void marriage because of a previously undissolved marriage of defendant.
The plaintiff filed a dismissal of her complaint in vacation. The appellants herein, who were Parker's attorneys, then filed a petition for fees. The lower court on the following day dismissed the cause. A petition which was denominated a petition of plaintiff's attorneys to set aside dismissal was filed by appellants. The appellants then filed an affidavit for change of venue from the judge. A special judge was selected who overruled the petition of appellant's to set aside the dismissal. The original judgment of dismissal was entered September 6, 1946. The order overruling the petition of appellants to set aside the dismissal upon which this appeal is based was entered January 21, 1947. The transcript was filed March 21, 1947.
The issue presented by appellees' motion to dismiss this appeal raises the question as to whether or not the appellants can prosecute this appeal which is predicated upon the alleged error of the trial court in refusing to set aside the original judgment of dismissal. The appellees contend in their brief on their motion to dismiss that since the transcript was filed more than ninety days after rendition of the original judgment of dismissal, this court cannot now entertain this appeal, and that an appeal cannot be taken from the action of the court on appellants' motion to vacate and set aside the judgment of dismissal since the appeal is not prosecuted by or in behalf of any party to the judgment. The parties to the original judgment were the appellees herein, and the appellants were appellee Parker's attorneys.
We are constrained by the authority of Zimmerman v. Zumpfe (1940), 218 Ind. 476, 33 N.E.2d 102, to hold that the motion to dismiss is well-founded on the ground that the transcript was not filed within 90 days from the time of the original judgment, and this court, therefore, does not have jurisdiction to entertain this appeal.
The appellee's motion to dismiss this appeal is therefore sustained.
NOTE. — Reported in 74 N.E.2d 926.