ON MOTION TO DISMISS APPEAL
On Fеbruary 15, 1951, the Review Board entered its decision against appellant on hеr claim for benefits under the Indiana Employment Se *379 curity Act. Such decision was mailed to all interested parties on February 20, 1951. Appellant, within a period of fifteen days thereafter, filed her notice of an .intention to appеal such decision.
Section 52-1542k, Burns’ 1951 Replacement, provides that: “Either pаrty to the dispute may, within thirty (30) days after notice of intention to appeal аs herein provided, appeal the decision to the Appellate Court for errors of law under the same terms and conditions as govern appeals in ordinary civil actions.”
It was not until May 15, 1951, (sixty-nine days after notice of intention to appeal) that appellant submitted the transcript and assignment of errors for filing. No extension of time within which to file the transcript and assignment of errors was requested or granted.
Appellant, in opposing appellees' motion to dismiss, seeks to show that the failure to file within the statutory time was due to accident and excusable mistake of appellant’s counsel.
It is shown by affidavit that on April 5, 1951, two days prior to the expiration of the time for filing the trаnscript and assignment of errors, appellant’s counsel appeаred in the office of the Clerk of the Supreme Court with such documents in his possession and with the intention of then and there filing the same. Feeling that it was necessary to file said documents within thirty days from the date of the notice of intention to аppeal, and knowing that but two days yet remained before such deadline, аnd being desirous of utilizing the fullest of time allotted, he inquired of a deputy clerk as tо the practice relating to the filing of appeals. The deputy clerk informed him that while he could file the transcript and assignment of errors at that timе, there was no need to do so immediately or on the 7th day of April, 1951, and that filing оn that day would make the briefs thereupon due within thirty days from that day; *380 that the deputy сlerk did not believe that the thirty day requirement overrode the rules of the court. Appellant’s counsel relied upon this statement, and did not file the documents and perfect the appeal within the time allowed.
It is uniformly held that an аppeal must be taken within the time limited by statute or rule. It is not sufficient to merely take some steps in that direction. tion. Unless the transcript and assignment of errors is filed within the time allowed there is no cause in the appellate tribunal, and the appeal will be dismissed.
Brady
v.
Garrison
(1912),
It has been said, however, that where an appellee, by violence or fraud, has prevented appellant frоm perfecting his appeal in time, or where appellant’s failure tо perfect his appeal was due to accident or excusablе mistake, the appellate tribunal may grant an appeal on a рroper application, by virtue of its inherent power. But this extraordinary рower will never be exercised except where appellant presents a meritorious case, in which he has been free from negligence, and appellee’s conduct or the accident or mistake reliеd on is clearly established.
Brady
v.
Garrison, supra; Smythe
v.
Boswell, supra; The Bank of Westfield
v.
Inman et al., supra; Hutts et al.
v.
Martin
(1892),
The only question here is whether there was excusable mistake which caused appellant to fail to perfect her appeal in time. No “accident” is shown.
It was said in
Fishback
v.
Public Service Comm.
(1923),
We do not believe, however, that a lawyer is entitled to rely upon the аdvice of a deputy court clerk interpreting the statutes of this state or thе rules of court.
Vaughan
v.
Walters
(1869),
Moreover, the mistake for which relief may be granted must be one of fact, and not, as here, one of law.
Chicago, etc., R. Co.
v.
Priddy
(1917),
The motion to dismiss the appeal is sustained.
Appeal dismissed.
Note. — Reported in