McConnell v. Fulmer

103 N.E.2d 803, 230 Ind. 576, 1952 Ind. LEXIS 227

• Court: Indiana Supreme Court
• Decided: May 16, 1952
• Docket: 28,840
• Status: Published

Opinions

ON MOTION TO DISMISS APPEAL

Jasper, J.

Appellee has filed a motion to dismiss appellant’s appeal. Appellant appealed, under §3-2603, Burns’ 1946 Replacement, from the decision of the trial court appointing a receiver pendente lite for real estate of appellant.

Appellee, in her motion to dismiss, contends that appellant failed to file her transcript within the time provided by statute. Section 3-2603, Burns’ 1946 Replacement, provides as follows:

“In all cases hereafter commenced or now pending in any of the courts of this state, in which a receiver may be appointed or refused, the party aggrieved may, within ten [10] days thereafter, appeal from the decision of the court to the Supreme Court, without awaiting the final determination of such case; and in case where a receiver shall be or has been appointed, upon the appellant filing an appeal-bond with sufficient surety, in such sum as may have been required of such receiver, conditioned for the due prosecution of such appeal, and the payment of all costs or damages that may accrue to any officer or person by reason thereof, the authority of such receiver shall be suspended until the final determination of such appeal.”

The order of the trial court appointing the receiver was made on September 24, 1951. The time for appeal would have expired on October 4, 1951. On October 3, 1951, an application was filed with this court requesting an extension of time for the filing of the transcript and assignment of errors, the request for extension being made under Rule 2-2 of this court, which provides as follows:

“In all appeals and reviews the assignment of errors and transcript of the record must be filed-in the office of the Clerk of the Supreme Court within 90 days from the date of the judgment or the ruling on the motion for a new trial, unless the statute under which the appeal or review is taken -fixes a shorter time, in which latter event the statute shall control. If within the time for filing the assignment of errors and transcript, as above provided, it is made to appear to the court to which an appeal or review is sought, notice having been given to the adverse parties, that notwithstanding due diligence on the part of the parties seeking an appeal or review, it has been and will be impossible to procure a bill of exceptions or transcript to permit the filing of the transcript within the time allowed, the court to which the appeal or review is sought may, in its discretion, grant a reasonable extension of time within which to file such transcript and assignment of errors. When the appellant is under legal disability at the time the judgment is rendered, he may file the transcript and assignment of errors within 90 days after the removal of the disability.”

The notice of the application for the extension of time in which to file the transcript and the assignment of errors was given by the adverse party by service upon one of her attorneys. The petition contained grounds for the extension of time under the rule; and, as a part of the petition, the affidavit of the reporter of the trial court was attached, showing, among other things, that she reported the hearing, and that it would be impossiblé to prepare the transcript within the ten days allowed for appeal. This court granted the extension of time to file the transcript and assignment of errors to and including October 25, 1951. They were filed within the time allowed.

Appellee asserts that this court had no right to extend the time in which to file the assignment of errors and transcript, and could not extend the time beyond the ten days allowed for appeal, as provided by §3-2603, Burns’ 1946 Replacement. Rule 2-2 of this court states specifically “all appeals and reviews.” It is clear and concise and covers all appeals, whether they be from final judgments or interlocutory orders, and therefore a statute fixing a shorter time than ninety days is within the rule, and, on proper showing, an extension of time can be granted. This court amended Rule 2-2 on the 17th day of June, 1943, effective on the 6th day of September, 1943, to read as above quoted. The rule covers any type of appeal or review. 1 Gavit Ind. Pleading & Practice, §53, p. 201. The time allowed for an appeal from an interlocutory order appointing a receiver is subject to Rule 2-2 of this court.

Appellee further contends that appellant failed to serve a copy of the application for extension of time to file the transcript and assignment of errors on her or her attorneys. Under the rules of this court, it was not necessary, as Rule 2-2 requires only the service of notice. Rule 2-13 does not apply to an application for extension of time to file a transcript and assignment of errors, although it would have been better practice to have served a copy upon appellee or her attorneys.

Appellee further contends that appellant failed to initiate her appeal by filing a praecipe with- the clerk within ten days, basing her assertion upon the fact that the date of filing does not appear upon the praecipe. The praecipe is a part of the transcript, copied there by the clerk-and certified as having been filed with him. The complete transcript was filed within the time allowed by this court. The clerk, in compliance with §2-3112, Burns’ 1946 Replacement, made the praecipe a part of the record, and the transcript was prepared in accordance with the praecipe. The appeal is therefore not subject to a motion to dismiss for failure to show the date of filing of the praecipe. Pittsburgh, etc., R. Co. v. Reed (1905), 36 Ind. App. 67, 75 N. E. 50.

It was within the discretion of this court to grant the extension of time within which to file the assignment of errors and transcript, under Rule 2-2; and the date of filing of the praecipe with the county clerk would only be considered in determining whether an extension should be granted. At most, the date of filing of the praecipe with the clerk would only go to the question of due diligence on the part of appellant in obtaining a record. This court, having granted the extension of time to file the transcript and assignment of errors, in substance decided that due diligence had been used.

Appellee asserts that appellant has failed to comply with Rule 2-17 of this court. There should be manifest good faith on the part of the writers of briefs to comply with our rules. The rules are for the government of the bar of this state, and they should be read and meticulously complied with; otherwise appeals will be subject to dismissal. We feel that appellant’s brief is understandable as to the questions presented, and it is our desire to decide cases on their merits where we are able to ascertain the questions to be decided. Gross Income Tax Div. v. Conkey Co. (1950), 228 Ind. 343, 88 N. E. 2d 563.

After considering all of the contentions of appellee, we find that they are without merit.

The motion to dismiss is overruled.

Note.—Reported in 103 N. E. 2d 803.