Coal Operators Cas. Co. v. Randolph, 18591
| Decision Date | 02 December 1954 |
| Docket Number | No. 18591,18591 |
| Citation | 125 Ind.App. 364,122 N.E.2d 737 |
| Parties | COAL OPERATORS CASUALTY COMPANY, Appellant, v. George N. RANDOLPH, Appellee. |
| Court | Indiana Appellate Court |
Youngblood, McCray & Clark, Evansville, for appellant.
John H. Jennings, Evansville, for appellee.
Action by appellee to recover of appellant the amount of a judgment recovered by appellee against appellant's insured. Trial by jury. Verdict for appellee. Judgment against appellant upon the verdict.
Appellant appeals from the overruling of its motion for a new trial, which action by the court is the sole assignment of error.
Appellant filed its brief in the Clerk's Office on October 27, 1954 accompanied by a verified proof of service which stated that on October 26, 1954 the affiant 'mailed' one copy of the brief to appellee's attorney in Evansville, Indiana.
Appellee, by verified amended motion, moves to dismiss this appeal upon the ground, supported by affidavits, that the brief was not received by him until October 28, 1954. Appellant has not contested the facts averred in appellee's amended motion.
Rule 2-19, effective September 2, 1940, provides that nine copies of each brief shall be filed 'together with proof of service of a copy upon the opposing party or his counsel.' The depositing in the United States mail of a copy of the brief, addressed to the opposing party or his counsel, does not constitute service under the rule unless it is actually received by such opposing party or his counsel within the allowable time for service. Gary Railways Co. v. Kleinknight (1941), 110 Ind.App. 72, 74, 36 N.E.2d 939.
We conclude, therefore, that the amended motion to dismiss this appeal should be sustained. This appeal is accordingly dismissed.
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