Opinion
No. 17,156.
Filed September 29, 1943.
APPEAL — Dismissal — Failure to Perfect Term Time or Vacation Appeal — Time for Perfecting Expired. — Where the transcript was filed in the office of the Clerk of the Appellate Court more than 60 days after the filing of the appeal bond, and no notice was given or served on appellee to perfect a vacation appeal and the time for taking such an appeal had passed, the appeal was dismissed.
From the St. Joseph Superior Court; J. Fred Bingham, Judge.
Action between Rolland H. Lasch and James A. Platz, administrator of the estate of Glenn E. Platz, deceased. From the judgment entered, Rolland H. Lasch appealed.
Appeal Dismissed. By the court in banc.
Lewis W. Hammond, of South Bend, for appellant.
Aaron Huguenard, of South Bend, for appellee.
Appellee has entered his special appearance for the sole purpose of filing his motion to dismiss this appeal. There are three specifications in his motion to dismiss. They are as follows:
"1. The appellant apparently attempted to take a term appeal, but did not file the transcript of the record in this court within sixty days after filing his appeal bond.
"2. Assuming that the appellant has abandoned his attempted term appeal he has failed to perfect an appeal under the rules governing vacation appeals in that no notice of said appeal has been given and in that the appellee has not appeared thereto.
"3. This case not having been appealed in term and having been on the docket for more than 30 days and there being no appearance by the appellee and no steps having been taken to bring him into court, the appeal should be dismissed."
The record discloses judgment was rendered against appellant on February 17, 1943. On April 2, 1943, appellant's motion for a new trial was overruled. On the same date appellant prayed an appeal to this court which was granted upon the filing of an appeal bond in the sum of $1,000 within thirty days. On the 29th day of April, 1943, appellant tendered his appeal bond to the trial court which was, on said day, approved by the court and ordered filed. The transcript was filed in the office of the clerk of this court on June 29, 1943, more than sixty days after the filing of the appeal bond. No notice was given or served on appellee to perfect a vacation appeal. It is now too late to perfect such vacation appeal. Bau v. Short (1929), 89 Ind. App. 17, 165 N.E. 560; McKinstry et al. v. Russell et al. (1942), 112 Ind. App. 133, 43 N.E.2d 875; Clemens v. Pierce (1942), 112 Ind. App. 136, 43 N.E.2d 1024.
Therefore, this appeal is dismissed.
NOTE. — Reported in 50 N.E.2d 663.