Bacon v. Withrow

• Decision Date: 08 March 1887
• Citation: 110 Ind. 94,10 N.E. 624
• Parties: Bacon, Adm'r, etc., v. Withrow and others.
• Court: Indiana Supreme Court

110 Ind. 94

10 N.E. 624

Bacon, Adm'r, etc.,

v.Withrow and others.

Supreme Court of Indiana.

March 8, 1887.

Appeal from circuit court, Jennings county.

D. Bacon, for appellant. A. G. Smith, for appellee.

ELLIOTT, C. J.

The final judgment in this case was rendered on the tenth day of July, 1885, and the record was filed in this court on the twenty-first day of December of that year, but no assignment of errors was filed until the seventh day of December, 1886. The appellee presses a motion to dismiss the appeal on the ground that the appeal was not brought within one year from the time the final judgment in the trial court was entered. The motion of the appellee must prevail. The assignment of errors is the appellant's complaint, and without it there is no case before the court. Hollingsworth v. State, 8 Ind. 257;Henderson v. Halliday, 10 Ind. 24. In the last case it was said: “There is no assignment of errors. Hence we have no jurisdiction of the case.” Judge Buskirk thus states the rule: “Until such an assignment is made a case is not in the supreme court for any purpose whatever.” Busk. Pr. 111. In view of the decision in Price v. Baker, 41 Ind. 570, this statement, perhaps, requires modification, for, under the rule there declared, a case may be in this court for the purpose of obtaining process before the assignment of errors is filed. But, when a year is allowed to elapse without filing an assignment of errors, it is quite clear that the case cannot be regarded as properly in this court. Breeding v. Shinn, 11 Ind. 547;State v. Delano, 34 Ind. 52;Thoma v. State, 86 Ind. 183;Estate of Thomas v. Service, 90 Ind. 128.

Appeal dismissed.