Howard County Council v. State ex rel. Osborn

215 N.E.2d 191, 247 Ind. 279, 1966 Ind. LEXIS 348

• Court: Indiana Supreme Court
• Decided: March 31, 1966
• Docket: No. 30,889
• Status: Published

Opinion

Myers, C. J.

This is an action brought by appellee, Fred G. Osborn, as Relator, and who was Prosecuting Attorney of Howard County, to mandate appellant, Howard County Council, to appropriate funds as salaries for himself and his deputy. Judgment was entered granting the writ of mandate. Appellant’s motion for new trial was .overruled on November 12, 1965.

Appellant took an appeal to this court by filing its transcript and assignment of errors on December 14, 1965. It then filed its brief in this cause with the Clerk of this Court on January 13, 1966. On the same day, proof of service was filed by appellant’s attorney stating that the Attorney General had been served with two copies of appellant’s brief. However, no proof of service was ever filed showing that appellee, Fred G. Osborn, was served with a copy.

On February 25, 1966, appellee filed a motion to dismiss the appeal on the basis that he had not been served with a copy of the brief within the time allowed by our Rules, and, in fact, as of that date he had not received a copy. As of March 18, 1966, no response had been filed to the motion to dismiss.

The cases are clear that an appeal is subject to dismissal if appellant fails to serve a copy of the brief on appellee within the time allowed. Service upon the Attorney General was not service upon the Prosecuting Attorney. Turner v. O’Neal, Sheriff, etc., et al. (1957), 237 Ind. 258, 145 N. E. 2d 1. The appeal, therefore, should be dismissed. In re Estate of Bauer et al. v. Bauer et al. (1963), 244 Ind. 363, 192 N. E. 2d 734.

Appeal dismissed.

Arterburn, Jackson and Rakestraw, JJ., concur. Achor, J., not participating.

Note. — Reported in 215 N. E. 2d 191.