Opinion
No. 14,649.
Filed July 27, 1932.
1. APPEALS — Time for Taking Appeal — When Motion for New Trial Filed. — When a motion for new trial is timely filed after judgment, the time for taking an appeal runs from the overruling of such motion. p. 2.
From the Clay Circuit Court; Thomas W. Hutchison, Judge.
Action by George R. Reberger against Isom Wools and Grover Wools. From a judgment for plaintiff, defendants appealed. Appeal dismissed. By the court in banc.
B.C. Craig and R.V. Tozer, for appellants.
Rawley, Baumunk Fisher, for appellee.
Appellee has appeared specially in this cause for the purpose of filing a motion to dismiss the same. Appellee alleges in his motion that the judgment from which this appeal is prosecuted was rendered by the Clay Circuit Court on June 15, 1931; that appellants' motion for a new trial was overruled by said court on October 5, 1931. The transcript in this cause was not filed in the office of the Clerk of this court until April 16, 1932, which was 193 days after the overruling of appellants' motion for a new trial. On July 12, 1932, attorneys for appellants acknowledged service of notice of the filing of this motion in this court and that the same would be submitted for hearing on July 25, 1932. There has been no appearance to the motion by appellants or their attorneys, nor has there been any counter showing filed questioning the truthfulness of the facts set out in appellee's motion to dismiss. An examination of the record sustains the allegations contained in the motion. Section 696 Burns 1926, provides that appeals to this court must be perfected within 180 days from the time the judgment is rendered.
When a motion for a new trial is filed after judgment is rendered the time for taking an appeal begins to run from the date of the overruling of said motion. Rusk v. Kokomo, 1. etc., Co. (1918) 68 Ind. App. 627, 121 N.E. 87.
It is very evident that appellants did not perfect their appeal as the law requires and this cause is therefore dismissed at appellants' costs.