Indianapolis Northern Traction Co. v. Long

Nichols, J. Appellee has filed his motion to dismiss this appeal for the reason that the transcript was not [391] filed within 180 days from the date of final judgment. It appears that the transcript was filed September 20, 1918, and appellee contends that the final judgment was rendered March 21, 1918. If appellee is right as to this contention, then 183 days had elapsed from final judgment to the date of filing the transcript, and appellee’s motion to dismiss must be sustained. The motion for a new trial was overruled on the same date as the final judgment was rendered. 1. 2. [392] 3. 4. [391] It appears by the record that the proceedings and judgment were entered April 11, 1918, nunc pro tunc as of March 21, 1918. The January term of the Cass Circuit Court ended March 30, 1918, and the nunc pro tunc entry was therefore made at the succeeding or April term of said court. Appellant says that the transcript fails to show that appellee served, or caused to be served, upon appellants or either of them, or upon their attorneys of record, or upon any person upon whom such notice might rightfully be served, any notice of his intention to have the proceedings of April 11, 1920, and that therefore the proceedings as to the nunc pro tunc entry are coram non judice and void. It does not appear by the record that no notice was served, and it is a rule of law as to the courts of general jurisdiction that it is presumed that every step necessary to give jurisdiction had been taken, and, unless the contrary appears, it will be presumed that there was due service of process or notice, or appearance by the parties. Exchange Bank v. Ault (1885), 102 Ind. 322, 1 N. E. 562; Quart v. Abbett (1885), 102 Ind. 233, 1 N. E. 476, 52 Am. Rep. 662; Godfrey v. White (1904), 32 Ind. App. 265, 69 N. E. 688; First Nat. Bank, etc. v. Hanna (1895), 12 Ind. App. 240, 39 N. E. 1054. It is not necessary that the record affirmatively show that the court had jurisdiction of the parties. Delaware Tp. v. Board, etc. [392] (1901), 26 Ind. App. 97, 59 N. E. 189. Appellants failed to make any objection to the jurisdiction of the trial court to make the nunc pro tuno entry until after appeal. On the contrary, they gave notice of their vacation appeal from a judgment of March 21,1918. Jurisdiction of the person or regularity of the proceeding must be raised in limine or it is waived. 15 C. J. 847. Though entered nunc pro tunc, the final judgment was rendered, and the motion for a new trial was overruled March 21, 1918; 183 days thereafter the transcript on appeal was filed. Too late. Appeal dismissed.