Lawrence v. Wood

• Decision Date: 13 March 1890
• Docket Number: 13,562
• Parties: Lawrence et al. v. Wood, Administrator
• Court: Indiana Supreme Court

24 N.E. 159

122 Ind. 452

Lawrence et al. v. Wood, Administrator

No. 13,562

Supreme Court of Indiana

March 13, 1890

From the Kosciusko Circuit Court.

Motion to dismiss the appeal is sustained, and the appeal is dismissed at the costs of the appellants.

W. D Frazer, J. S. Frazer, W. B. Hess and M. A. O. Packard, for appellants.

A. G Wood, L. H. Haymond and L. W. Royse, for appellee.

OPINION

Coffey, J.

Final judgment was rendered in this cause in the circuit court on the 19th day of January, 1886. The transcript was filed in the office of the clerk of this court on the 17th day of January, 1887.

The assignment of errors was made on the 25th day of August 1887. The joinder in error was made on the same day. The cause was submitted on the 26th day of September, 1887, and on the 8th day of February, 1890, the appellee filed in this court a motion to dismiss this appeal, alleging for cause that the assignment of errors was not made within one year from the date of final judgment in the circuit court.

It is claimed by the appellee that in order to confer jurisdiction upon this court the transcript must be filed, and the assignment of errors made, within one year from the date of the rendition of the judgment in the circuit court. On the other hand, it is contended by the appellants that this court acquires jurisdiction when the transcript is filed within the year, and that the assignment of errors may be made afterwards.

The case of Bacon v. Withrow, 110 Ind. 94, 10 N.E. 624, is decisive of the question now before us. In that case final judgment was rendered on the 10th day of July 1885, and the transcript filed in the office of the clerk of this court on the 21st day of December of that year. The assignment of errors was filed on the 7th day of December, 1886. The appeal was dismissed on motion. It was said in that case that under the rule announced in the case of Price v. Baker, 41 Ind. 570, a case may be in this court for the purpose of obtaining process before the assignment of errors is filed; but when a year is allowed to elapse without filing an assignment of errors, it is quite clear that the case can not be regarded as properly in this court. The case of Smythe v. Boswell, 117 Ind. 365, 20 N.E. 263, is also an authority in support of the contention of the appellee in this case.

In the case of Harshman v. Armstrong, 43 Ind. 126 no question was before the court relating to the...