Plotnicki v. Nowicki

73 Ind. App. 383 | Ind. Ct. App. | 1920

McMahan, C. J.

1. In order to effectuate a term-time appeal under §679 Burns 1914, §638 R. S. 1881, it is essential that the trial court shall, during the term at which the judgment is rendered, or during the term at which the motion for a new trial is overruled, when such motion is filed after judgment, fix the amount of the appeal bond, name and approve the surety and, if the bond is not filed during that tefm, must designate the time within which it may be filed. Where this is done the duty of the court with reference thereto is at an end. If an appellant files his bond in conformity with the statute and such order, he may prosecute his appeal as a term-time appeal, otherwise not.

2. When the trial court during term approves an appeal bond and designates the time within which it may be filed, it has no authority, at a subsequent term, although it is within the time allowed for filing such bond, to permit a substitution of another surety and to then approve such bond, as was done in the instant case. Michigan, etc., Ins. Co. v. Frankel (1898), 151 Ind. 534, 50 N. E. 304; Brown v. Brown (1907), 168 Ind. 654, 80 N. E. 535; Daugherty v. Payne (1911), 175 Ind. 603, 95 N. E. 233; Penn, etc., Plate Glass Co. v. Poling (1913), 52 Ind. App. 492, 100 N. E. 83; Ashley v. Henderson (1904), 32 Ind. App. 242, 69 N. E. 469; Fort v. White (1915), 58 Ind. App. 524, 108 N. E. 27; Blose v. Myers (1915), 58 Ind. App. 34, 107 N. E. 548; Rohrbaugh v. Leas, Admr. (1917), 63 Ind. App. 544, 114 N. E. 762; Equitable Surety Co. v. Taylor (1919), 71 Ind. App. 382, 121 N. E. 283.

No attempt having been made to perfect a vacation appeal, appellee’s motion to dismiss must be sustained. Appeal dismissed.