Court of Honor v. Bankert

Wiley, P. J. Appellee has appeared especially in this cause, and moved to dismiss under rule thirty-six of this court. The record shows that the judgment was rendered November 7, 1902. November 15, 1902, appellant’s motion for a new trial was overruled, and ninety days given to file bill of exceptions embodying the evidence. An appeal was prayed to this court, and thirty days given to file bond. The penalty of the bond was fixed by the court, and the surety suggested approved. On December 12, 1902, the appeal bond was filed, and on February 11, 1903, the bill of exceptions embodying the evidence was filed. The transcript of the proceedings below was filed in the clerk’s office on May 23, 1903. Section 650 Burns 1901, provides: “The transcript shall be filed in the office of the clerk of the Supreme Court within sixty days after filing the bond.” The transcript not having been filed within sixty days after the filing of the bond, the appeal, as of term, under rule one of this court shall be deemed to be abandoned, and the appeal must be held to be taken as of the time the transcript is filed. §650 Burns 1901; Ewbank’s Manual, §§91, 102; Elliott App. Proc., §§246, 247. Under -these authorities, the appeal in this case must be held to be a vacation appeal. The case having been appealed in vacation, and having been on the docket more than ninety days, and there being no appearance by the appellee, except for the purposes of this motion, and no steps having been taken to bring her into court, it is the duty of the clerk, under rule thirty-six to enter an order of dismissal. A defective attempt to take a term-time appeal [691] must be followed by notice, or it will be dismissed under this rule. Michigan Mutual Life Ins. Co. v. Frankel, 151 Ind. 534; Ewbank’s Manual, §91. The motion to dismiss is sustained.