Huber v. Tielking

55 Ind. App. 577 | Ind. Ct. App. | 1914

Lairy, C. J.

The decree was rendered in this case on July 9, 1910, and the motions for a new trial were overruled on September 17, 1910. The transcript was filed in this court on September 12, 1911. On October 6, 1911, the Illinois Surety Company, one of appellants, filed a petition in this court asking leave to file errors, which petition was denied.

1. It is provided by statute that appeals must be taken within one year from the time the judgment is rendered, but the courts have held that in ease the judgment precedes the ruling upon the motion for a new trial, the time for taking an appeal begins to run from the date on which the motion for a new trial is overruled. §672 Burns 1908, §633 R. S. 1881; Joyce v. Dickey (1885), 104 Ind. 183, 3 N. E. 252; Moon v. Cline (1895), 11 Ind. App. 460, 39 N. E. 432.

2. The assignment of errors constitutes the complaint on appeal and it must be filed within the time allowed by the statute. This court has no power to extend the time for perfecting an appeal beyond that fixed by the legislature. No showing however strong can be considered as sufficient to warrant the exercise of a power which the court does not possess. As no appeal was perfected in this case no question is presented for decision.

On Motion to Modify Order of Dismissal.

Lairy, C. J.

3. William Huber and others as trustees file a petition to modify the order of dismissal so as to limit the same to the Illinois Surety Company, for the reason, as claimed, that Huber and others, trustees, filed an assignment of errors within the time allowed by the statute for perfecting a vacation appeal and that they are entitled to have the errors so assigned, considered by this court. If it were true that Huber and others had filed an assignment of errors and given the proper notice within the time allowed and in the manner provided by the statute, their rights to prosecute this appeal could not be affected by the failure of the Illinois Surety Company to file its assignment of errors in time.

4. The statute and the rules of the Supreme and Appellate Courts require that appellant shall make a specific assignment of error on the transcript or upon some paper attached thereto. §696 Burns 1908, §655 R. S. 1881; Rule 4, Rules of Supreme and Appellate Courts. Huber et al. trustees, did not assign errors on the transcript or on any paper attached thereto. By this motion our attention is called to a paper purporting to be an assignment of error by these parties which bears a file mark of the clerk of this court under date of September 12, 1911. This paper was found among motions and other papers filed in this ease which are contained in a jacket provided for that purpose. It is not attached to the record and cannot be considered as a proper assignment of errors. Hays v. Johns (1873), 42 Ind. 505; Wiggs v. Koontz (1873), 43 Ind. 430; Moore v. Hammons (1889), 119 Ind. 510, 21 N. E. 1111. The motion to modify the order of dismissal is denied.

Note.—Reported in 103 N. E. 853; 104 N. E. 314. As to the scope and effect of writs of error, see 91 Am. Dec. 193. See, also, under (1) 2 Cyc. 793; (2) 2 Cyc. 1004; (4) 2 Cyc. 1005.