Miller v. Conner

169 N.E.2d 216, 131 Ind. App. 56, 1960 Ind. App. LEXIS 153

• Court: Indiana Court of Appeals
• Decided: September 22, 1960
• Docket: No. 19,517
• Status: Published

Opinion

Bierly, C. J.

The decree was rendered in this causa on February 17, 1960, and the motion for a new trial was overruled on May 4, 1960. The Transcript and Assignment of Errors were required by rule to be filed on or before August 2, 1960. On July 20, 1960, appellants filed a petition for an extension of time to file Assignment of Errors and Transcript, which petition was granted by this court to and including September 15, 1960.

Appellants have taken no further action in this cause. The Assignment of Errors constitute a complaint on appeal and the same must have been filed in this cause by September 15, 1960, unless a second petition for an extension of time to file said Transcript and Assignment of Errors had been timely filed and granted. This was not done.

Hence, because of the failure of appellants to comply with Rule 2-2, no question is presented in this cause nor can any question be presented.

In the case of Huber v. Tielking (1914), 55 Ind. App. 577, a co-appellant failed to file its assignment of errors within the time provided by the rules. The court dismissed the action as to said co-appellant. The court used these words:

“No showing however strong can be considered as sufficient to warrant the exercise of a power which the court does not possess. As no appeal was perfected in this case no question is presented for decision.”

Eailure by appellants to perfect their appeal, this case is now ordered stricken from the record and terminated with costs, if any, assessed against appellants.

Note. — Reported in 169 N. E. 2d 216.