Indiana Trust & Sav. Bank v. Zapp
| Decision Date | 02 December 1955 |
| Docket Number | No. 18751,18751 |
| Citation | 130 N.E.2d 329,126 Ind.App. 92 |
| Parties | INDIANA TRUST and SAVINGS BANK, Executor of the Last Will and Testament of Mamie G. Asplan, Deceased, Appellant, v. Carl ZAPP, Appellee. |
| Court | Indiana Appellate Court |
Ben J. Biederwolf, Forest M. Condit, Evansville, for appellant.
John G. Bunner, Evansville, for appellee.
This is an action by appellee for services rendered to decedent during her lifetime. Judgment for $8,500 in favor of appellee.
Appellee has filed his motion to dismiss this appeal or, in the alternative, affirm the judgment of the trial court for three specified reasons. In view of the conclusion we have reached we need to consider only the first specification of this motion, that 'No copy of appellant's brief was served upon the appellee or his counsel prior to, nor upon the date of the filing of appellant's brief, and neither the appellee or his counsel was served with a copy of appellant's brief on or before the day of the filing of same, as required by Rule 2-19, Rules of the Supreme Court'. The pertinent portion of this rule provides as follows:
'Nine copies of each brief shall be filed, together with proof of service of a copy upon the opposing party or his counsel.'
The record discloses judgment was rendered against appellant on April 18, 1955. On June 9, 1955, its motion for a new trial was overruled. The transcript and assignment of errors was filed with the Clerk of this court on August 3, 1955. The appellant's brief was filed with said Clerk on August 31, 1955. At that time an affidavit was filed averring one Goldie Bynum, at the direction of Ben J. Biederwolf, one of appellant's attorneys, did, on said 31st day of August, 1955, mail appellant's brief to counsel for the appellee herein. The affidavit of appellee's attorney avers that no copy of appellant's brief was served on appellee or his counsel prior to or upon the day said brief was filed in the office of the Clerk. Attached to and as a part of said motion is a letter from the Postmaster of the United States Post Office at Evansville, Indiana, dated September 9, 1955, which, omitting address and signature, is as follows:
'Hoping this explanation will suffice I remain,'
Appellant, in its brief answering appellee's motion to dismiss, does not controvert the foregoing facts. However, it makes the...
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