Bachelder v. Parker

• Decision Date: 10 October 1947
• Docket Number: No. 17616.,17616.
• Citation: 118 Ind.App. 66,74 N.E.2d 926
• Parties: BACHELDER et al. v. PARKER et al.
• Court: Indiana Appellate Court

118 Ind.App. 66

74 N.E.2d 926

BACHELDER et al.

v.PARKER et al.

No. 17616.

Appellate Court of Indiana, in Banc.

Oct. 10, 1947.

Appeal from Marion Superior Court No. 4; Carl Wilde, Special Judge.

Suit for annulment by Edith Parker against Jacob Reiss. The plaintiff filed a dismissal of her complaint in vacation, and H. K. Bachelder and others, who were plaintiff's attorneys, filed a petition for fees. The complaint was dismissed, and H. K. Bachelder and others filed a petition seeking to set aside dismissal of the petition. From an order overruling the petition to set aside the dismissal, H. K. Bachelder and others appeal, and Edith Parker and Jacob Reiss move to dismiss the appeal.

Motion to dismiss appeal sustained.Bachelder, Bachelder & Fife, of Indianapolis, for appellants.

Erle A. Kightlinger, Paul G. Davis and Herbert E. Wilson, all of Indianapolis, for appellees.

BOWEN, Chief Judge.

This appeal is undertaken from the ruling of the trial court below on a motion to vacate and set aside a judgment. The action in which the original judgment was entered was a suit for annulment brought by Edith Parker, plaintiff, in her maiden name against Jacob Reiss, defendant, and was based upon an alleged void marriage because of a previously undissolved marriage of defendant.

The plaintiff filed a dismissal of her complaint in vacation. The appellants herein, who were Parker's attorneys, then filed a petition for fees. The lower court on the following day dismissed the cause. A petition which was denominated a petition of plaintiff's attorneys to set aside dismissal was filed by appellants. The appellants then filed an affidavit for change of venue from the judge. A special judge was selected who overruled the petition of appellants to set aside the dismissal. The original judgment of dismissal was entered September 6, 1946. The order overruling the petition of appellants to set aside the dismissal upon which this appeal is based was entered January 21, 1947. The transcript was filed March 21, 1947.

The issue presented by appellees' motion to dismiss this appeal raises the question as to whether or not the appellants can prosecute this appeal which is predicated upon the alleged error of the trial court in refusing to set aside the original judgment of dismissal. The appellees contend in their brief on their motion to dismiss that since the transcript was filed more than ninety days after rendition of the original judgment of dismissal, this...