Opinion
No. 14,726.
Filed November 18, 1932.
1. APPEALS — Term Time Appeal — When Deemed Abandoned. — Where appellant fails to file his transcript within 60 days after filing appeal bond, and fails to secure an extension of time therefor, the appeal is deemed abandoned as a term time appeal. p. 214.
2. APPEALS — Vacation Appeal — Notice. — In order to perfect a vacation appeal, the statutory notice, provided in § 700 Burns 1926, must be given appellee. p. 214.
3. APPEALS — Vacation Appeal — Notices Above — Praecipe Required Therefor. — In order to perfect a vacation appeal after abandoning a term time appeal, where appellant relies on the Clerk of the Appellate Court to issue notice to appellee, appellant must file a praecipe directing such clerk to give notice. p. 214.
4. APPEALS — No Steps to Bring Appellee into Court for 90 Days — Dismissal. — Where a cause remains on the docket more than 90 days without appellant taking steps to bring appellee into court, the appellee not having appeared, the appeal should be dismissed. p. 215.
From Marion Superior Court (A-62264); Clarence E. Weir, Judge.
Action by Mildred Dugan against John E. Fraker. From a judgment for plaintiff, defendant appealed. Appeal dismissed. By the court in banc.
George Burkhart, for appellant.
Hal W. Jones and L. Ert Slack, for appellee.
The facts herein, as disclosed by appellee's motion to dismiss and the record, are as follows:
On March 2, 1932, the date on which motion for a new trial was overruled, final judgment in this cause was rendered by the trial court, and on this same date appellant prayed an appeal and was given ninety (90) days in which to file his bill of exceptions. On April 7, 1932, appellant filed his appeal bond, and on July 15, 1932, he filed his transcript with the clerk of this court. The record further shows that no extension of time for the filing of the transcript was asked for or granted.
From the above facts it is clearly apparent that, having failed to file his transcript with the clerk of this court within sixty (60) days from the time of filing of the appeal bond, or to 1. obtain an extension of time for the filing of said transcript, as provided by Section 698 Burns Ann. St. 1926, as amended by Acts 1917, p. 71, appellant has failed to perfect a term time appeal, and the appeal will be deemed to be abandoned as such. Town of Windfall City et al. v. The State of Indiana, ex rel. Wood (1910), 174 Ind. 311, 92 N.E. 57; Kintz v. State of Indiana, ex rel. Hunter (1919), 71 Ind. App. 225, 124 N.E. 739.
Appellant has also failed to perfect a vacation appeal for the reason that no notice was given or caused to be given to the appellee herein, nor has appellee received notice as 2. required by Section 700 Burns Ann. St. 1926. Section 700 Burns, supra, provides two methods for taking an appeal, and appellant has apparently relied upon the provision requiring the clerk of this court to issue notice. However, no praecipe was issued or caused to be issued directing the 3. clerk to issue notice, and this court, in the very recent case of Smallwood v. Keough et al. (1932), ante 75, 182 N.E. 544, specifically held that the filing of a proper praecipe is a prerequisite to the giving of notice by the clerk of this court.
No appearance having been made by appellee, and this cause having been on the docket of this court more than ninety (90) days without appellant having taken any steps to bring 4. appellee into court, the clerk is hereby directed and ordered to enter a dismissal of this cause in accordance with Rule 36 of this court.