35 Ind. App. 289 | Ind. Ct. App. | 1905
Lead Opinion
In Coburn v. Whitaker & Garrett Lumber Co., supra, judgment was rendered on the 5th day of June, 1893, and on May 17, 1894, a transcript and assignment of errors were filed in the office of the Clerk of the Supreme Court, and nothing further was done until September 13, 1894, when the appellant caused notice to be issued and served upon appellee’s attorney of record. The court said: “The statute, §645 Burns 1894 [§633 R. S. 1881], limits tire time in which appeals may be taken to this court to within one year from the time the judgment is rendered. The appeal must be fully perfected within that time. The filing of the transcript alone within that time is not sufficient. The transcript must be filed and notice of the appeal issued to the appellee within one year from the rendition of the judgment. Bank of Westfield v. Inman [1892], 133 Ind. 287; Holloran v. Midland R. Co. [1891], 129 Ind. 274.”
In Bank of Westfield v. Inman, supra, upon motion to dismiss the appeal, appellant was granted leave to perfect the same, and it was held that where an appellant had done all that the law required of him in perfecting the appeal, and without any fault on his part, but by the mistake and inadvertence of the clerk, notice of the appeal was not given to one of the appellees within the time required by law, that the court had the power to relieve against accident and excusable mistake in course of appeal.
In Holloran v. Midland R. Co., supra, it was held that an appeal not taken in accordance with §650 Burns 1901, §638 R. S. 1881, providing for appeals in term time, required notice to be given; that §647 Burns 1901, §635 R. S. 1881, provides that a part of several coparties may appeal, but in such cases they must serve notice of the appeal upon the other coparties, and file proof
The last cases above named are cited in Tate v. Hamlin, supra, and in the opinion reference is made to Holloran v. Midland R. Co., supra, the court holding that it is not in conflict with the opinions cited in the case tiren under consideration. The rule in the case last named is recognized in John V. Harwell Co. v. Newman (1897), 17 Ind. App. 649, and in Daugherty v. Brown (1898), 21 Ind. App. 115. So far as Coburn v. Whitaker & Garrett Lumber Co., supra, appears to be in conflict with Tate v. Hamlin, supra, it has ceased to be the law. The question raised by the motion, we think, has been decided adversely to the claim of appellee.
Motion to dismiss appeal overruled.
Concurrence Opinion
I concur in the result. The facts in this case are so far different from those in Coburn v. Whitaker & Garrett Lumber Co., supra, that I do not think the two cases are in conflict upon the point in issue.
