Jennings v. Davis
| Decision Date | 31 May 1994 |
| Docket Number | No. 35A05-9311-CV-419,35A05-9311-CV-419 |
| Citation | 634 N.E.2d 810 |
| Parties | Rex JENNINGS, Appellant-Defendant, v. Pamela S. DAVIS, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
P. Robert Dawalt, Jr., Marion, for appellant.
Rex Jennings appeals the judgment of the trial court in favor of Pamela Davis on Davis's complaint for partition. We must dismiss the appeal because Jennings did not file his praecipe in a timely manner.
Indiana Appellate Rule 2(A) states: Timely filing of a praecipe is a jurisdictional prerequisite and when the praecipe has not been timely filed we must dismiss the appeal. CNA Ins. Companies v. Vellucci (1992), Ind.App., 596 N.E.2d 926, 928, trans. denied. Here, the trial court entered the final judgment on August 16, 1993. Jennings filed his praecipe on September 16, 1993, thirty-one (31) days after the entry of the final judgment. Thus, the praecipe was not timely filed and the appeal must be dismissed.
DISMISSED.
There is no question that ample case authority exists supporting the notion that the timely filing of a praecipe is a jurisdictional prerequisite to an appeal. See, e.g., Dixon v. State (1991), Ind.App., 566 N.E.2d 594, trans. denied; Hughes v. Morgan County (1983), Ind.App., 452 N.E.2d 447; Bailey v. Sullivan (1982), Ind.App., 432 N.E.2d 75. However, if this were actually the state of the law, then the late filing of a praecipe would automatically preclude appellate review in every instance. Clearly that is not the case. Rather, this court has not hesitated to invoke its inherent discretionary authority to entertain an appeal even though the time allowed therefore has expired. To be sure we have invoked this authority only after intoning the mantra "this court will exercise such discretion only in rare and exceptional cases." See, e.g., CNA Ins. Cos. v. Vellucci (1992), Ind.App., 596 N.E.2d 926, 929, trans. denied; Costanzi v. Ryan (1977), 174 Ind.App. 454, 368 N.E.2d 12, 16. However, either the timely filing of a praecipe is a jurisdictional prerequisite to an appeal or it is not. If it were truly jurisdictional, then further explanation would be unnecessary. The late filing of a praecipe would mean this court had no authority to entertain an appeal and that would end the discussion.
The very fact that we have carved out exceptions suggests that the timely filing of a praecipe is not a jurisdictional matter. Rather, whether or not to entertain...
To continue reading
Request your trial
-
Greer v. State
...that, "where an appellant fails to file a timely praecipe, the Court of Appeals has 'no choice' but to dismiss") and Jennings v. Davis (1994) Ind.App., 634 N.E.2d 810 (holding that, when praecipe is not filed within thirty days, "we must dismiss the appeal") (emphasis In Claywell, our supre......
-
Hanson v. Spolnik
...order. Failure to file an appeal in a timely manner is a jurisdictional failure requiring dismissal of the appeal. Jennings v. Davis, 634 N.E.2d 810, 810 (Ind.Ct.App.1994). Under Indiana law, a contempt citation becomes a final appealable order when the court attaches and punishes the defen......
-
Vaughn v. Schnitz
...is a jurisdictional prerequisite to an appeal and a precondition to the right to an appeal. CNA, supra; see also Jennings v. Davis, 634 N.E.2d 810 (Ind.Ct.App.1994), reh. denied, 645 N.E.2d 23; Bd. of Comm'rs of Lake County, Indiana v. Foster, 614 N.E.2d 949 (Ind.Ct.App.1993). That perfecti......
-
Jennings v. Davis
...BARTEAU, Judge. By published opinion, we dismissed Jennings appeal because the praecipe was filed one day late. Jennings v. Davis (1994), Ind.App., 634 N.E.2d 810. Jennings petitions for rehearing on the following (1) the time period for timely filing the praecipe was extended three days pu......