Milburn v. Cory

Cox, J. The judgment from which appellants have attempted to take this vacation appeal was rendered by the trial court, January 30, 1915. The transcript containing appellants’ assignment of errors was filed July 1, 1915. Appellants’ briefs on the assignment of errors were filed October 20, 1915. Before answering the briefs appellees have interposed a motion to dismiss the appeal and rely on, as the primary ground of the motion, that one of the parties to the judgment below was not and is. not, in the capacity in which he was sued, named as an appellee in the assignment of errors in disregard of the requirements of Rule 6 of the rules of this court. Counsel for appellants concedes this defect in the assignment'of errors and now long after the time for perfecting the appeal has expired, asks leave to amend and so cure the defect on the ground [342] that the insufficient assignment of errors “was wholly due to the mistake and inadvertence of appellants’ counsel.” The amendment would have been permitted of course if request therefor had been made before the expiration of the time for perfecting the appeal. But it now comes too late. Steel v. Yoder (1915), 58 Ind. App. 633, 108 N. E. 783; Rook v. Strauss Bros. Co. (1915), 58 Ind. App. 82, 107 N. E. 692; Prough v. Prough (1910), 174 Ind. 57, 59, 91 N. E. 337; Town of Windfall City v. State, ex rel. (1910), 174 Ind. 311, 92 N. E. 57, and cases there cited. That the defective assignment of errors prevents a consideration of any questions which may be involved is settled by the uniform decisions of this court. Whisler v. Whisler (1904) 162 Ind. 136, 67 N. E. 984, 70 N. E. 152, and cases cited; Bender v. State, ex rel. (1911), 176 Ind. 70, 95 N. E. 301 Deinhart v. Mugg (1911), 176 Ind. 531, 96 N. E. 467; Klotz v. Schellenberger (1913), 180 Ind. 287, 102 N. E. 134. Appeal dismissed. Note. — Reported in 110 N. E. 193. See, also, 3 C. J. 1350, 1399; 2 Cyc 985, 1005.