Rook v. Strauss Bros.

Indiana Court of Appeals

Rook v. Strauss Bros.

107 N.E. 692, 58 Ind. App. 82, 1915 Ind. App. LEXIS 99

CourtIndiana Court of Appeals

DecidedFebruary 9, 1915

DocketNo. 8,924

StatusPublished

Cited by3 cases

This text of 107 N.E. 692 (Rook v. Strauss Bros.) 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

Rook v. Strauss Bros., 107 N.E. 692, 58 Ind. App. 82, 1915 Ind. App. LEXIS 99 (Ind. Ct. App. 1915).

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Opinion

Shea, J.

The record in this case is rather indefinite as to dates. It is clear, however, that the decree was rendered and motion for new trial overruled prior to January 27, 1914. On January 27, 1914, an appeal was prayed and a bond filed. The transcript was filed in this court, certified to by the clerk of the Adams Circuit Court on February 26, 1914. On October 10, 1914, a petition was filed on behalf of appellants asking leave to file an amended assignment of errors.

1. [83]*832. [82]*82It is provided by statute that appeals must be taken within 180 days from the time judgment was rendered, but the courts have held in ease the judgment precedes the ruling on the motion for a new trial, that the time for taking an appeal begins to run from the date on [83]*83which the motion for a new trial is overruled. §672 Burns 1914, Acts 1913 p. 65. “The assignment of errors constitutes the complaint on appeal and it must be filed within the time allowed by the statute. This court has no power to extend the time for perfecting an appeal beyond that fixed by the legislature. No showing however strong can be considered as sufficient to warrant the exercise of a power which the court does not possess.” Huber v. Tielking (1914), 55 Ind. App. 577, 103 N. E. 853. The granting of the motion to file an amended assignment of errors in this case would be in effect to permit the filing of a new assignment of errors, as it would completely change the issues raised. The motion for leave to file an amended assignment of errors is therefore overruled.

Note. — Reported in 107 N. E. 692. As to computation of time for appeal or writ of error as affected by motion for new trial or rehearing, see 3 Ann. Cas. 630. See, also, under (1) 2 Cyc. 793; (2) 2 Cyc. 1003; 2 Cyc. 1913 Anno. 1006—new.

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Shea, J.

The record in this case is rather indefinite as to dates. It is clear, however, that the decree was rendered and motion for new trial overruled prior to January 27, 1914. On January 27, 1914, an appeal was prayed and a bond filed. The transcript was filed in this court, certified to by the clerk of the Adams Circuit Court on February 26, 1914. On October 10, 1914, a petition was filed on behalf of appellants asking leave to file an amended assignment of errors.

1. [83]*832. [82]*82It is provided by statute that appeals must be taken within 180 days from the time judgment was rendered, but the courts have held in ease the judgment precedes the ruling on the motion for a new trial, that the time for taking an appeal begins to run from the date on [83]*83which the motion for a new trial is overruled. §672 Burns 1914, Acts 1913 p. 65. “The assignment of errors constitutes the complaint on appeal and it must be filed within the time allowed by the statute. This court has no power to extend the time for perfecting an appeal beyond that fixed by the legislature. No showing however strong can be considered as sufficient to warrant the exercise of a power which the court does not possess.” Huber v. Tielking (1914), 55 Ind. App. 577, 103 N. E. 853. The granting of the motion to file an amended assignment of errors in this case would be in effect to permit the filing of a new assignment of errors, as it would completely change the issues raised. The motion for leave to file an amended assignment of errors is therefore overruled.

Note. — Reported in 107 N. E. 692. As to computation of time for appeal or writ of error as affected by motion for new trial or rehearing, see 3 Ann. Cas. 630. See, also, under (1) 2 Cyc. 793; (2) 2 Cyc. 1003; 2 Cyc. 1913 Anno. 1006—new.

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Bluebook (online)

107 N.E. 692, 58 Ind. App. 82, 1915 Ind. App. LEXIS 99, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rook-v-strauss-bros-indctapp-1915.

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