Straber v. Schmaltz

Kime, C. J. — This is an attempted term-time appeal from a judgment rendered on February 16, 1934. The motion for new trial was overruled on March 2, 1935. Appellees have entered a special appearance and filed a motion to dismiss on the ground that appellants have not complied with the statute authorizing a term-time appeal nor was notice given as required to perfect a vacation appeal. The record discloses the following entry made on March 2, 1935: “And now said plaintiffs pray an appeal to the Appellate Court of Indiana, and ask thirty days to file appeal bond, and the court now grants said appeal, and said plaintiffs given ninety days to file bill of exceptions. Bond to be approved by the clerk in vacation.” In .order to perfect a term-time appeal, a bond with the penalty fixed and sureties, approved by the court in term must be filed within the time fixed by the court. As the court did not name and approve any sureties or fix the penalty of the bond during the term at which the motion for new trial was overruled it follows that a term-time appeal was not perfected and this court has no jurisdiction under the attempted term-time appeal. Penn. Am. Plate Glass Co. v. *631 Poling, Admx. (1912), 52 Ind. App. 492, 100 N. E. 83, and cases there cited. Coxe Bros. & Co. v. Foley (1914), 58 Ind. App. 584, 107 N. E. 85; Tuttle v. Fowler (1914), 183 Ind. 99, 107 N. E. 674; Vancleave v. Wolf (1933), 98 Ind. App. 650, 190 N. E. 371. The appellants’ attempted term-time appeal therefore failed and no attempt having been made to per-feet a vacation appeal and the time for so perfecting having expired, this appeal is dismissed.