James C. Curtis and Co. v. Emmerling

• Decision Date: 27 March 1940
• Docket Number: 16499.
• Citation: 25 N.E.2d 1008
• Court: Indiana Appellate Court
• Parties: JAMES C. CURTIS & CO. v. EMMERLING et al.

25 N.E.2d 1008

JAMES C. CURTIS & CO. v. EMMERLING et al.

No. 16499.

Appellate Court of Indiana, In Banc.

March 27, 1940

Appeal from Jasper Circuit Court; Moses Leopold, Judge.

Action on a note by James C. Curtis & Company against Rose Weis Emmerling and the Estate of Nicholas Emmerling, deceased, and others. From a judgment for the plaintiff against first named defendant and in favor of the estate, plaintiff appeals.

Appeal dismissed.

Crumpacker & Friedrich, of Hammond, for appellant.

Galvin Galvin & Leeney and Bomberger, Peters & Morthland all of Hammond, for appellees.

DE VOSS, Chief Judge.

Appellant herein, James C. Curtis & Company, filed its claim on a promissory note against the estate of Nicholas Emmerling deceased. Rose Weis Emmerling was thereafter made a party defendant thereto by amendment of complaint. Ola Emmerling Blume, by leave of court, appeared specially and objected to the jurisdiction of the trial court, which objection was overruled by the court. Trial was had and the court returned a finding and judgment for plaintiff against Rose Weis Emmerling and in favor of the estate, from which judgment plaintiff appeals.

Appellee herein, Ola Emmerling Blume, has entered a special appearance herein and has filed a motion to dismiss this appeal assigning among other reasons therefor that this is a vacation appeal, and that Rose Weis Emmerling, appellee, is a party to the judgment appealed from and that she has not been served with notice of this appeal, nor has she entered an appearance herein.

Appellee insists that this appeal is a vacation appeal or appeal after term. Section 2-3204, Burns' Ind.Statutes Ann.1933, Sec. 480, Baldwin's Ind.St.1934, relating to term time appeals, provides among other things that: "* * * The transcript shall be filed in the office of the clerk of the Supreme Court within sixty (60) days after filing the bond; it being provided that in any action now or hereafter pending, the court in which said appeal bond was filed, or the judge thereof in vacation, may grant a reasonable extension of the time for filing said transcript in the office of the clerk of the Supreme Court, upon written application made by any party appellant to said appeal * * *."

The record discloses that the appeal bond was filed on July 10th, 1939, and that the transcript was filed with the clerk of the court on September 16th, 1939, after more than sixty days had expired from the date of filing the appeal bond, and that such time for filing the transcript had not been extended by the court or judge. By reason thereof appellant abandoned his term time appeal as provided for in Section 2-3204 (Sec. 480, Baldwin's 1934), supra. Kintz v. State ex rel. Hunter, 1919, 71 Ind.App. 225, 124 N.E. 739; Fraker v. Dugan, 1932, 95 Ind.App. 213, 183 N.E. 132.

Appellee further contends that this appeal is governed by Section 2-3206, Burns' Ind.Statutes Ann.1933, Sec. 482, Baldwin's Ind.St.1934, providing for appeal after term. If such contention is correct, notice to the adverse parties is necessary to confer jurisdiction on this court.

Appellant contends that notice of this appeal is not necessary as this appeal is governed by Section 6-2002, Burns' Ind. Statutes Ann.1933, Sec. 3278, Baldwin's Ind.St.1934, which relates to appeals in matters connected with decedents' estates, and which provides: "* * * The transcript shall be filed in the Supreme Court within ninety (90) days after filing the appeal bond * * *."

Rule 1 of the Revised Rules of the Supreme and Appellate Courts of Indiana, adopted June 21, 1937, reads in part as follows: "Appeals from final judgments in all civil and criminal cases in which the final judgment is entered or a motion for a new trial is ruled upon subsequent to the thirty-first day of August, 1937, must be taken within 90 days of the date of the judgment or the ruling on the motion for a new trial. * * *"

In the case of Roebuck et al. v. Essex, Adm'x, 1938 214 Ind. 637, 638, 17 N.E.2d 469, wherein the interpretation of Rule 1, supra, was concerned, our Supreme Court made the following pronouncement: "The appellants contend that the appeal is governed by section 3 of chapter 36 of the Acts of 1913 (Acts 1913, p. 65), section 6-2002, Burns' Ann.St.1933, section 3278, Baldwin's Ind.St.1934, which provides for appeals in matters...