Huber v. Tielking

• Decision Date: 16 January 1914
• Docket Number: No. 8,155.,8,155.
• Citation: 103 N.E. 853,55 Ind.App. 577
• Parties: HUBER et al. v. TIELKING et al.
• Court: Indiana Appellate Court

55 Ind.App. 577

103 N.E. 853

HUBER et al.

v.TIELKING et al.

No. 8,155.

Appellate Court of Indiana, Division No. 2.

Jan. 16, 1914.

Appeal from Superior Court, Marion County; Vinson Carter, Judge.

Action between William D. Huber and others and Henry W. Tielking and others. Judgment for Tielking and others, and Huber and others appeal. Dismissed.Charles B. Clarke and Walter C. Clarke, both of Indianapolis, for appellants. Samuel Ashby, of Indianapolis, for appellee Tielking. Lewis C. Walker, of Indianapolis, for appellee Noelke-Richards Iron Works. Henley, Matson & Gates, of Indianapolis, for appellee Gates. Francis M. Springer, of Indianapolis, for appellee Kurman & Hattendorf. Myers & Fenton, of Indianapolis, for appellee H. H. Symmes Co. Jones, Hammond & Jones, of Indianapolis, for appellee H. W. Laut & Co. Weaver & Young, of Indianapolis, for appellee Bedford Stone & Const. Co. Albert E. Cottey, of Indianapolis, for appellee Charles G. Davis & Sons. Smith, Duncan, Hornbrook & Smith, of Indianapolis, for appellee Michigan Lumber Co.

LAIRY, C. J.

[1] The decree was rendered in this case on July 9, 1910, and the motions for a new trial were overruled on September 17, 1910. The transcript was filed in this court on September 12, 1911. On October 6, 1911, the Illinois Surety Company, one of appellants, filed a petition in this court asking leave to file errors, which petition was denied.

It is provided by statute that appeals must be taken within one year from the time the judgment is rendered, but the courts have held that in case the judgment precedes the ruling upon the motion for a new trial the time for taking an appeal begins to run from the date on which the motion for a new trial is overruled. Burns' 1908, § 672; Joyce v. Dockey, 104 Ind. 183, 3 N. E. 252;Moon v. Cline, 11 Ind. App. 460, 39 N. E. 432.

[2] The assignment of errors constitutes the complaint on an 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.

As no appeal was perfected in this case no question is presented for decision.