Leslie v. Ebner

118 N.E. 829, 67 Ind. App. 32, 1918 Ind. App. LEXIS 197

• Court: Indiana Court of Appeals
• Decided: March 1, 1918
• Docket: No. 10,014
• Status: Published

Opinions

Caldwell, J.

Appellant has appealed from a judgment rendered against bim on a claim filed against the estate of appellee’s decedent. Appellee moves to dismiss the appeal. The facts are as follows: Judgment was rendered on December 23, 1916. Appellant’s motion for a new trial was overruled on February 24,1917, and thereafter on that day he filed his appeal bond. The transcript was filed in this court on June 18, 1917. This court did not extend the time within which to file the appeal bond. It appears then that the appeal bond was not filed within thirty days after the judgment was originally rendered. It appears also that the transcript was not filed within ninety days after the filing of the bond, or within 120 days after the judgment was originally rendered, but that it was filed within 120 days after the overruling of the motion for a hew trial. The parties agree that §2978 Burns 1914, Acts 1913 p. 65, governs respecting both the time within which and the manner of perfecting the appeal. Literally that section is to the effect that the appeal bond must be filed within thirty days after the decision complained of, in the absence of an extension of time granted by the appellate tribunal, and that the transcript must be filed within ninety days after the filing of the bond. Appellee contends that December 23,1916, the day on which the judgment was originally rendered, marks the beginning of the time limited for the filing of the bond, and that consequently it was not filed within the thirty-day period. Appellant, however, insists that the overruling of the motion for a new trial, where that event is subsequent to the original rendering of judgment, is the beginning of the period so limited, and consequently that the bond was filed in time. It is appellee’s second contention that in any event the filing of the bond is the ■ beginning point of the time within which the transcript must be filed, and that it must' be filed within ninety days thereafter, while appellant argues that under the statute the rendering of the final judgment, in this case the overruling of the motion for a new trial, sets to run the time within which both the bond and the transcript must be filed, and that the former must be filed within thirty days and the latter within thirty days plus ninety days, or 120 days thereafter. It will be observed that here the bond was filed on the day on which the motion for a new trial was overruled, and the transcript was filed 114 days thereafter. We proceed to consider the various arguments advanced by the parties to support their respective contentions:

1. Section 2843 Burns 1914, Acts 1883 p. 56, provides in substance that the trial of claims filed against decedent’s estates shall be conducted as in ordinary civil cases. It follows that where the statute does not specify the practice in the trial of such claims, the rules of procedure in civil causes should be followed where applicable. Goodbub v. Estate of Hornung (1891), 127 Ind. 181, 26 N. E. 770. It results that in trials of claims filed against decedent’s estates, motions for a new trial are contemplated as in civil causes. Boots v. Griffith (1883), 89 Ind. 246; McConahey’s Estate v. Foster (1898), 21 Ind. App. 416, 52 N. E. 619; Lester v. Lester, Exr. 1880), 70 Ind. 201; Henry, Probate Law §§274, 284.

2. While, literally, §2978, supra, is to the effect that the appeal bond must be filed within thirty days after the “decision” complained of, the rendering of the final judgment in fact marks' the beginning of such time. Galentine v. Brubaker (1896), 147 Ind. 458, 46 N. E. 903.

3. In civil causes where the filing of a motion for a new trial is subsequent to the rendering of the judgment, the time specified by statute for taking an appeal begins to run from the time of overruling the motion. Blaemire v. Barnes (1909), 173 Ind. 657, 91 N. E. 232.

4. It follows that February 24, 1917, rather than December 23, 1916, is the date from which must be counted the ' time granted by §2978, supra, within which to file the appeal bond. The bond was filed on that day, and consequently within time. The transcript was filed 114 days thereafter, and consequently within 120 days after the overruling of the motion for a new trial, but not within ninety days after the filing of the appeal bond. Where the party whose interests are adverse to the estate prosecutes an appeal under §2978, supra, the courts hold, apparently in conflict with the literal reading of the section, that he is entitled to 120 days from the rendering of the final judgment within which to file his transcript in the appellate tribunal, although the appeal bond may have been filed within less than the thirty days specified. Thomas v. Davis, Admr. (1916), 64 Ind. App. 378, 115 N. E. 961; Simons v. Simons (1891), 129 Ind. 248, 28 N. E. 702. See, also, Bindley v. Darnall, Admr. (1899), 24 Ind. App. 399, 56 N. E. 861; Vail v. Page (1910), 175 Ind. 126, 93 N. E. 705.

The holding is the same where an administrator of an estate appeals, he not being required to file an appeal bond. Willis v. Ferguson (1916), 62 Ind. App. 563, 111 N. E. 810. See, also, Crittenberger v. State, etc., Trust Co. (1916), 63 Ind. App. 151, 114 N. E. 225.

Motion to dismiss is overruled.