Nemitz v. State ex rel. Miller

Indiana Court of Appeals

Nemitz v. State ex rel. Miller

78 N.E. 357, 38 Ind. App. 509, 1906 Ind. App. LEXIS 225

CourtIndiana Court of Appeals

DecidedJune 29, 1906

DocketNo. 6,196

StatusPublished

Cited by3 cases

This text of 78 N.E. 357 (Nemitz v. State ex rel. Miller) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Nemitz v. State ex rel. Miller, 78 N.E. 357, 38 Ind. App. 509, 1906 Ind. App. LEXIS 225 (Ind. Ct. App. 1906).

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Opinion

Robinson, C. J.

Suit by appellee to quiet title. Upon issues formed a decree was entered in appellee’s favor, from which appellants appealed. Appellee moves to dismiss the appeal on the ground that it was not perfected 'within a year from the date of the judgment. Appellants’ attorney, on June 16, 1906, acknowledged service of notice that the motion to dismiss would be heard by this court on June 22, 1906, or as soon thereafter as the same could be heard by the court.

1. This is a vacation appeal. The judgment was entered December 8, 1904. The transcript, with the assignment of errors, was filed in the office of the clerk of this court December 1, 1905. To notices of any kind were issued until about sixty days after the tran[510]*510script was filed, the indorsement on the transcript reciting “1906, February 7. Notice and proof of service to attorney of record and clerk, February 6, 1906.” It does not appear from the transcript and its indorsements that any attempt was made to have notice issued or served until in February, 1906.

In Tate v. Hamlin (1895), 149 Ind. 94, it is said: “It is also well settled by the decisions of this court that the filing of the transcript with a proper assignment of error thereon within the time limited for taking an appeal perfects the appeal without the service of notice on the appellees.” Citing Harshman v. Armstrong (1873), 43 Ind. 126; Johnson v. Stephenson (1885), 104 Ind. 368; Wright v. Manns (1887), 111 Ind. 422.

This case distinguishes the case of Holloran v. Midland, R. Co. (1891), 129 Ind. 274, on the ground that the notice in the Holloran case was to a coparty and not to an appellee.

In Bank of Westfield v. Inman (1892), 133 Ind. 287, the judgment was rendered December 5, 1891, and the transcript with assignment of errors was filed July 16, 1892, on which day a notice was issued, which was served on the 18th day of the month. No notice was issued or served upon the other appellee prior to the filing of the motion to dismiss the appeal, nor was an appearance entered for him. On December 7, 1892, the motion to dismiss was filed, and on the next day the clerk issued a notice to the other appellee; the court said: “If this appeal stood alone upon the transcript and its indorsements, we would be compelled to sustain the motion to dismiss.” To the same effect is Coburn v. Whitaker, etc., Lumber Co. (1895), 12 Ind. App. 340. See, also, Elliott, App. Proc., §128; Lawrence v. Wood (1890), 122 Ind. 452.

While the case of Tate v. Hamlin, supra, does not expressly overrule the earlier cases, yet it must be conceded [511]*511that it declares a rule contrary to that declared in the earlier cases.

2. However, the motion to dismiss is also upon the ground that appellants have failed to comply with the rules of this court with respect to filing briefs. The brief contains less than one page of type-written matter, and does not in any way comply with the rules. It appears to have been prepared with none of that care that should be exercised in preparing briefs, and meets none of the requirements of a brief. The brief wholly fails to present any question for review.

Appeal dismissed.

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Robinson, C. J.

Suit by appellee to quiet title. Upon issues formed a decree was entered in appellee’s favor, from which appellants appealed. Appellee moves to dismiss the appeal on the ground that it was not perfected 'within a year from the date of the judgment. Appellants’ attorney, on June 16, 1906, acknowledged service of notice that the motion to dismiss would be heard by this court on June 22, 1906, or as soon thereafter as the same could be heard by the court.

1. This is a vacation appeal. The judgment was entered December 8, 1904. The transcript, with the assignment of errors, was filed in the office of the clerk of this court December 1, 1905. To notices of any kind were issued until about sixty days after the tran[510]*510script was filed, the indorsement on the transcript reciting “1906, February 7. Notice and proof of service to attorney of record and clerk, February 6, 1906.” It does not appear from the transcript and its indorsements that any attempt was made to have notice issued or served until in February, 1906.

In Tate v. Hamlin (1895), 149 Ind. 94, it is said: “It is also well settled by the decisions of this court that the filing of the transcript with a proper assignment of error thereon within the time limited for taking an appeal perfects the appeal without the service of notice on the appellees.” Citing Harshman v. Armstrong (1873), 43 Ind. 126; Johnson v. Stephenson (1885), 104 Ind. 368; Wright v. Manns (1887), 111 Ind. 422.

This case distinguishes the case of Holloran v. Midland, R. Co. (1891), 129 Ind. 274, on the ground that the notice in the Holloran case was to a coparty and not to an appellee.

In Bank of Westfield v. Inman (1892), 133 Ind. 287, the judgment was rendered December 5, 1891, and the transcript with assignment of errors was filed July 16, 1892, on which day a notice was issued, which was served on the 18th day of the month. No notice was issued or served upon the other appellee prior to the filing of the motion to dismiss the appeal, nor was an appearance entered for him. On December 7, 1892, the motion to dismiss was filed, and on the next day the clerk issued a notice to the other appellee; the court said: “If this appeal stood alone upon the transcript and its indorsements, we would be compelled to sustain the motion to dismiss.” To the same effect is Coburn v. Whitaker, etc., Lumber Co. (1895), 12 Ind. App. 340. See, also, Elliott, App. Proc., §128; Lawrence v. Wood (1890), 122 Ind. 452.

While the case of Tate v. Hamlin, supra, does not expressly overrule the earlier cases, yet it must be conceded [511]*511that it declares a rule contrary to that declared in the earlier cases.

2. However, the motion to dismiss is also upon the ground that appellants have failed to comply with the rules of this court with respect to filing briefs. The brief contains less than one page of type-written matter, and does not in any way comply with the rules. It appears to have been prepared with none of that care that should be exercised in preparing briefs, and meets none of the requirements of a brief. The brief wholly fails to present any question for review.

Appeal dismissed.

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78 N.E. 357, 38 Ind. App. 509, 1906 Ind. App. LEXIS 225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nemitz-v-state-ex-rel-miller-indctapp-1906.

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