Lawrence v. Wood

122 Ind. 452 | Ind. | 1890

Coffey, J.

Final judgment was rendered in this cause in the circuit court on the 19th day of January, 1886. The transcript was filed in the office of the clerk of this court on the 17th day of January, 1887.

The assignment of errors was made on the 25th day of August, 1887. The joinder in error was made on the same day. The cause was submitted on the 26th day of September, 1887, and on the 8th day of February, 1890, the appellee filed in this court a motion to dismiss this appeal, alleging for cause that the assignment of errors was not made within one year from the date of final judgment in the circuit court.

It is claimed by the appellee that in order to confer jurisdiction upon this court the transcript must be filed, and the assignment of errors made, within one year from the date of the rendition of the judgment in the circuit court. On the other hand, it is contended by the appellants that this court acquires jurisdiction when the transcript is filed within the year, and that the assignment of errors may be made afterwards.

The case of Bacon v. Withrow, 110 Ind. 94, is decisive of the question now before us. In that case final judgment was rendered on the 10th day of July, 1885, and the transcript filed in the office of the clerk of this court on the 21st day of December of that year. The assignment of errors was filed on the 7th day of December, 1886. The appeal was dismissed on motion. It was said in that case that under the rule announced in the case of Price v. Baker, 41 Ind. 570, a case may be in this court for the purpose of obtaining process before the assignment of errors is filed; but when a year is allowed to elapse without filing an assignment of errors, it is quite clear that the case can not be regarded as properly in this court. The case of Smythe v. Boswell, 117 Ind. 365, is also an authority in support of the contention of the appellee in this case.

In the case of Harshman v. Armstrong, 43 Ind. 126, no question was before the court relating to the time within which the assignment of errors should be filed, and for that reason the case can not be regarded as an authority upon the question presented in this case.

Filed March 13, 1890.

The motion to dismiss the appeal is sustained, and the appeal is dismissed at the costs of the appellants.