Spencer v. Miller

297 N.E.2d 491, 156 Ind. App. 462, 1973 Ind. App. LEXIS 1149

Opinions

Per Curiam.

This cause is pending before the Court on the appellee’s Motion to Dismiss or Affirm, which alleges that the praecipe in this cause was not filed within thirty days after the trial court’s ruling on the motion to correct errors.

An examination of the record reveals that the motion to correct errors was filed on November 10, 1972, and overruled on November 14, 1972. The praecipe was not filed until December 26, 1972.

Since the motion to correct errors was filed after April 1, 1972, Rule AP. 2 applies. Said rule provides as follows:

“An appeal is initiated by filing with the clerk of the trial court a praecipe designating what is to be included in the record of the proceedings, and that said praecipe shall be filed within thirty (30) days after the court’s ruling on the Motion to Correct Errors or the right to appeal will be forfeited.”

The Court in several recent cases has construed the rule to be mandatory. See: Brennan v. National Bank & Trust Co. (1972), 153 Ind. App. 628, 288 N.E.2d 573; Bell, et al. v. Wabash Valley Trust Co. (1972), 154 Ind. App. 575, 290 N.E.2d 454; In re Est. of Moore (1973), 155 Ind. App. 92, 291 N.E.2d 566; Soft Water Utilities, Inc. v. LeFevre (1973), 293 N.E.2d 788. Therefore, in accordance with our understanding of the rule, the appellee’s Motion to Dismiss is sustained and this cause is dismissed.

Sullivan, J., dissents with opinion.