Appellee has filed his motion to dismiss this appeal, averring in said motion among other things that the appeal was not taken within the time provided for taking appeals. Appellant has not questioned this motion by answer or otherwise. *Page 605
Appellee asserts, and the record verifies, that final judgment was entered on December 12, 1938, and the motion for a new trial was overruled on May 19, 1939, and that thereafter on September 11, 1939, appellant filed with the clerk of this court a transcript of the record, together with assignment of errors thereon, and it appears therefrom that more than ninety days elapsed from the date of the ruling on the motion for a new trial to the filing of the appeal in this court.
Rule 1 of the Revised Rules of the Supreme and Appellate Courts of Indiana, adopted June 21, 1937, reads as follows:
"Appeals from final judgments in all civil and criminal cases in which the final judgment is entered or a motion for a new trial is ruled upon subsequent to the thirty-first day of August, 1937, must be taken within 90 days of the date of the judgment or the ruling on the motion for a new trial. . . ."
The attempted appeal not having been perfected within the time provided by the above rule therefor, the motion to dismiss is sustained. Appeal dismissed.