Jeffries v. Orndorf

44 Ind. App. 225 | Ind. Ct. App. | 1909

Watson, J.

Appellee has filed a motion to dismiss this cause.

1. The reason first assigned for such dismissal is that the parties are not properly named in the assignment of errors. The parties are named therein as in the amended complaint, answer, verdict and other proceedings in the court below. Furthermore it is not shown that said parties have full names other than those given in the assignment of errors. Therefore it cannot be successfully urged that the full names were not given.

2. The court below granted to appellant fifty days within which to present his bill of exceptions. The bill was presented within that time. The statute provides that delay by the judge in signing and filing the bill shall not deprive the party of the benefit thereof. §660 Burns 1908, §629 R. S. 1881.

3. The transcript was filed in this court within the time allowed by statute. §2978 Burns 1908, Acts 1889, p. 397.

4. Appellant being an executor, no appeal bond was necessary. §§687, 2980 Burns 1908, §§645, 2457 R. S. 1881.

5. Appellee, having filed his brief on the merits of this cause, has thereby entered an appearance in this court. Rule 9, Supreme and Appellate Courts. The entering of a general appearance waives lack of notice. Lowe v. Turpie (1897), 147 Ind. 652, 37 L. R. A. 233; State v. Walters (1878), 64 Ind. 226; Jones v. Henderson (1898), 149 Ind. 458; Ewbank’s Manual, §199; Elliott, App. Proc., §§376, 519, 677.

Appellee’s motion does not present any valid reason for dismissing this cause. The motion is therefore overruled.