Western & Southern Life Insurance v. Lottes

Opinion On Motion to Dismiss. Royse, C. J. Appellee has filed a motion to dismiss this appeal on the following grounds: “An appeal in this cause to the Appellate Court was granted by the Dubois Circuit Court upon condition that appellants file an appeal bond in the penal sum of Three Thousand Dollars ($3,000.00) with the Continental Casualty Company as surety thereon, and the appellant; Lee M. Potts, has failed to file an appeal bond.” In her memorandum brief in support of this motion *563 she contends the Supreme Court has not provided by-rule that appeals may be taken without the filing of an appeal bond, and therefore the statute providing for the filing of an appeal bond as a prerequisite to the taking of an appeal is still in force. Citing, Board of Public Safety v. Walling (1934), 206 Ind. 540, 187 N. E. 385. Rule 2-3, Rules of the Supreme Court (1943 Revision) , provides, in part, as follows: “Distinctions between term-time and vacation appeals are abolished. ... An appeal shall be initiated by filing in the office of the Clerk below a praecipe designating what is to be embraced in the transcript. In all cases the appellate tribunal may order such notice to the parties in interest as the ends of justice may require. . . . Enforcement ■of a judgment will be suspended during an appeal upon the giving of an adequate appeal bond with approved sureties. Prior to the filing of the transcript for appeal such bond shall be fixed and approved and the order of stay issued by the trial court or the judge thereof in vacation; thereafter by the appellate tribunal.” This rule makes it unnecessary to file an appeal bond. The only purpose of an appeal bond is to stay execution on the judgment. It has not been our custom nor are we required to file written opinions on motions to dismiss appeals where the same are overruled. We do so in this instance only because the motion herein involves the construction of the Rules on a question that heretofore has had no expressed judicial interpretation. Phillips v. Townsend, Admr. (1944), 115 Ind. App. 273, 56 N. E. (2d) 856; Sup. Realty & Bg. Co. v. First Nat. Bank, etc. et al. (1944), 115 Ind. App. 641, 56 N. E. (2d) 855. The motion to dismiss is overruled. Note. — Reported in 63 N. E. (2d) 146.