Opinion
No. 30,889.
Filed March 31, 1966.
1. APPEAL — Brief — Service Upon Appellee. — An appeal is subject to dismissal if appellant fails to serve a copy of the brief on appellee within time allowed. p. 281.
2. APPEAL — Brief — Service of Brief — Service on Attorney General. — Where county was appealing from a judgment granting a writ of mandate compelling them to appropriate funds as salaries for county prosecuting attorney and his deputy, service of a copy of the brief on the attorney general was not service on prosecuting attorney. p. 281.
3. APPEAL — Brief — Failure to Serve — Dismissal. — Where prosecuting attorney was not served with copy of appellant's brief in case involving appeal by the county from a judgment granting a writ of mandate compelling county council to appropriate funds as salaries for prosecuting attorney and his deputy, appeal would be dismissed. p. 281.
From the Howard Circuit Court, Frank V. Dice, Special Judge.
Appellee, Fred G. Osborn, prosecuting attorney of Howard County, filed his motion to dismiss this appeal on the basis that he had not been served with a copy of a brief within time allowed by the Supreme Court Rules.
Appeal dismissed.
Robert S. Whitehead and Joseph A. Noel, Noel and Noel, of Kokomo, for appellant.
Richard Good and Lacey, Angel Good, of Kokomo, for appellee.
This is an action brought by appellee, Fred G. Osborn, as Relator, and who was Prosecuting Attorney of Howard County, to mandate appellant, Howard County Council, to appropriate funds as salaries for himself and his deputy. Judgment was entered granting the writ of mandate. Appellant's motion for new trial was overruled on November 12, 1965.
Appellant took an appeal to this court by filing its transcript and assignment of errors on December 14, 1965. It then filed its brief in this cause with the Clerk of this Court on January 13, 1966. On the same day, proof of service was filed by appellant's attorney stating that the Attorney General had been served with two copies of appellant's brief. However, no proof of service was ever filed showing that appellee, Fred G. Osborn, was served with a copy.
On February 25, 1966, appellee filed a motion to dismiss the appeal on the basis that he had not been served with a copy of the brief within the time allowed by our Rules, and, in fact, as of that date he had not received a copy. As of March 18, 1966, no response had been filed to the motion to dismiss.
The cases are clear that an appeal is subject to dismissal if appellant fails to serve a copy of the brief on appellee within the time allowed. Service upon the Attorney General was 1-3. not service upon the Prosecuting Attorney. Turner v. O'Neal, Sheriff, etc., et al. (1957), 237 Ind. 258, 145 N.E.2d 1. The appeal, therefore, should be dismissed. In re Estate of Bauer et al. v. Bauer et al. (1963), 244 Ind. 363, 192 N.E.2d 734.
Appeal dismissed.
Arterburn, Jackson and Rakestraw, JJ., concur. Achor, J., not participating.
NOTE. — Reported in 215 N.E.2d 191.