Milburn v. Cory

Indiana Supreme Court

Milburn v. Cory

110 N.E. 193, 184 Ind. 341, 1915 Ind. LEXIS 161

CourtIndiana Supreme Court

DecidedNovember 24, 1915

DocketNo. 22,875

StatusPublished

Cited by6 cases

This text of 110 N.E. 193 (Milburn v. Cory) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Milburn v. Cory, 110 N.E. 193, 184 Ind. 341, 1915 Ind. LEXIS 161 (Ind. 1915).

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Opinion

Cox, J.

The judgment from which appellants have attempted to take this vacation appeal was rendered by the trial court, January 30, 1915. The transcript containing appellants’ assignment of errors was filed July 1, 1915. Appellants’ briefs on the assignment of errors were filed October 20, 1915. Before answering the briefs appellees have interposed a motion to dismiss the appeal and rely on, as the primary ground of the motion, that one of the parties to the judgment below was not and is. not, in the capacity in which he was sued, named as an appellee in the assignment of errors in disregard of the requirements of Rule 6 of the rules of this court. Counsel for appellants concedes this defect in the assignment'of errors and now long after the time for perfecting the appeal has expired, asks leave to amend and so cure the defect on the ground [342]*342that the insufficient assignment of errors “was wholly due to the mistake and inadvertence of appellants’ counsel.” The amendment would have been permitted of course if request therefor had been made before the expiration of the time for perfecting the appeal. But it now comes too late. Steel v. Yoder (1915), 58 Ind. App. 633, 108 N. E. 783; Rook v. Strauss Bros. Co. (1915), 58 Ind. App. 82, 107 N. E. 692; Prough v. Prough (1910), 174 Ind. 57, 59, 91 N. E. 337; Town of Windfall City v. State, ex rel. (1910), 174 Ind. 311, 92 N. E. 57, and cases there cited. That the defective assignment of errors prevents a consideration of any questions which may be involved is settled by the uniform decisions of this court. Whisler v. Whisler (1904) 162 Ind. 136, 67 N. E. 984, 70 N. E. 152, and cases cited; Bender v. State, ex rel. (1911), 176 Ind. 70, 95 N. E. 301 Deinhart v. Mugg (1911), 176 Ind. 531, 96 N. E. 467; Klotz v. Schellenberger (1913), 180 Ind. 287, 102 N. E. 134.

Appeal dismissed.

Note. — Reported in 110 N. E. 193. See, also, 3 C. J. 1350, 1399; 2 Cyc 985, 1005.

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Cox, J.

The judgment from which appellants have attempted to take this vacation appeal was rendered by the trial court, January 30, 1915. The transcript containing appellants’ assignment of errors was filed July 1, 1915. Appellants’ briefs on the assignment of errors were filed October 20, 1915. Before answering the briefs appellees have interposed a motion to dismiss the appeal and rely on, as the primary ground of the motion, that one of the parties to the judgment below was not and is. not, in the capacity in which he was sued, named as an appellee in the assignment of errors in disregard of the requirements of Rule 6 of the rules of this court. Counsel for appellants concedes this defect in the assignment'of errors and now long after the time for perfecting the appeal has expired, asks leave to amend and so cure the defect on the ground [342]*342that the insufficient assignment of errors “was wholly due to the mistake and inadvertence of appellants’ counsel.” The amendment would have been permitted of course if request therefor had been made before the expiration of the time for perfecting the appeal. But it now comes too late. Steel v. Yoder (1915), 58 Ind. App. 633, 108 N. E. 783; Rook v. Strauss Bros. Co. (1915), 58 Ind. App. 82, 107 N. E. 692; Prough v. Prough (1910), 174 Ind. 57, 59, 91 N. E. 337; Town of Windfall City v. State, ex rel. (1910), 174 Ind. 311, 92 N. E. 57, and cases there cited. That the defective assignment of errors prevents a consideration of any questions which may be involved is settled by the uniform decisions of this court. Whisler v. Whisler (1904) 162 Ind. 136, 67 N. E. 984, 70 N. E. 152, and cases cited; Bender v. State, ex rel. (1911), 176 Ind. 70, 95 N. E. 301 Deinhart v. Mugg (1911), 176 Ind. 531, 96 N. E. 467; Klotz v. Schellenberger (1913), 180 Ind. 287, 102 N. E. 134.

Appeal dismissed.

Note. — Reported in 110 N. E. 193. See, also, 3 C. J. 1350, 1399; 2 Cyc 985, 1005.

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110 N.E. 193, 184 Ind. 341, 1915 Ind. LEXIS 161, Counsel Stack Legal Research, https://law.counselstack.com/opinion/milburn-v-cory-ind-1915.

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