Bacon v. Withrow

10 N.E. 624, 110 Ind. 94, 1887 Ind. LEXIS 13

• Court: Indiana Supreme Court
• Decided: March 8, 1887
• Docket: No. 12,774
• Status: Published

Opinion

Elliott, C. J.

The final judgment in this case was rendered on the 10th day of July, 1885, and the record was filed, in this court on the 21st day of December of that year, but no assignment of en-ors was filed until the 7th day of December, 1886. The appellees press a motion to dismiss the appeal, on the ground that the appeal was not brought within one year from the time the final judgment in the trial court, was entered.

The motion of the appellees must prevail. The assignment of errors is the appellant’s complaint, and without it there is no case before the court. Hollingsworth v. State, ex rel., 8 Ind. 257; Henderson v. Halliday, 10 Ind. 24.

, In the last case it was said : “ There is no assignment of" errors. Hence, we have no jurisdiction of the case.” Judge Buskirk thus states the rule : “Until such assignment is made, a case is not in the Supreme Court for any purpose whatever.”" Buskirk Pr. 111.

In view 'of the decision in Price v. Baker, 41 Ind. 570,. this statement, perhaps, requires modification, for, under the rule there declared, a case may be in this court for the purpose of obtaining process before the assignment of errors is filed. But when a year is allowed to elapse without filing an assignment of errors, it is quite clear that the case can not be regarded as properly in this court. Breeding v. Shinn, 11 ; State, ex rel., v. Delano, 34 Ind. 52; Thoma v. State, 86 Ind. 182; Estate of Thomas v. Service, 90 Ind. 128.

Filed March 8, 1887.

Appeal dismissed.