McKinstry v. Russell

Full title: McKINSTRY ET AL. v. RUSSELL ET AL

Court: Court of Appeals of Indiana

Date published: Oct 2, 1942

112 Ind. App. 133 (Ind. Ct. App. 1942)

43 N.E.2d 875

Opinion

No. 17,023.

Filed October 2, 1942.

APPEAL — Dismissed — Failure to Perfect Term Time or Vacation Appeal — Time for Perfecting Expired. — Where appellants failed to perfect a term time appeal within the 60 days time provided by statute, and made no attempt to perfect the appeal as a vacation appeal, and the time for taking a vacation appeal had expired, the appeal was dismissed.

From the Elkhart Superior Court; Albert B. Chipman, Special Judge.

Action by Mark S. McKinstry and others against Fred E. Russell and others to recover a judgment based upon an assessment on shares of stock allegedly owned by defendants. From a judgment for defendants, plaintiffs appealed.

Appeal dismissed. By the court in banc.

Seebirt, Oare Deahl, of South Bend, for appellants.

Verne G. Cawley, of Elkhart, for appellees.

FLANAGAN, C.J.

This is an appeal from the Elkhart Superior Court from the judgment rendered in an action to recover a money judgment against the appellees, based upon an assessment made on shares of stock which it is alleged were owned by the appellees.

On April 9, 1942, the appellants' motion for a new trial was overruled and on the same day they prayed an appeal to this court which was granted upon the filing of a bond within thirty days from that date. On May 6, 1942, appellants filed their appeal bond which was on that day approved. The transcript herein was filed in the office of the Clerk of this Court on July 7, 1942, sixty-two days after the filing of the appeal bond. No attempt was made to perfect the appeal as a vacation appeal by serving notice pursuant to the provisions of § 2-3206, Burns' 1933, § 482, Baldwin's 1934.

The appellees appeared specially for the purpose of filing a motion to dismiss the appeal on the grounds that the appellants had failed to file the transcript within sixty days after filing their appeal bond, or within any extended period of time granted by the court, and had likewise failed to take any steps to perfect the appeal as a vacation appeal.

Since appellants failed to perfect a term time appeal by filing the transcript within the time provided by statute, and since it is now too late to perfect a vacation appeal, the appeal must be dismissed. Anderson v. Lagow (1942), 220 Ind. 363, 41 N.E.2d 798.

The appeal is dismissed.

NOTE. — Reported in 43 N.E.2d 875.