McConnell v. Fulmer, 28840

• Decision Date: 21 February 1952
• Docket Number: No. 28840,28840
• Parties: McCONNELL v. FULMER.
• Court: Indiana Supreme Court

Page 803

103 N.E.2d 803

230 Ind. 576

McCONNELL v. FULMER.

No. 28840.

Supreme Court of Indiana.

Feb. 21, 1952.

Arthur T. Mayfield, Garth B. Melson, Indianapolis, for appellant.

Noble Wible and Morton & Tumbove, all of Indianapolis, for appellee.

JASPER, Judge.

Appellee has filed a motion to dismiss appellant's appeal. Appellant appealed, under § 3-2603, Burns' 1946 Replacement, from the decision of the trial court appointing a receiver pendente lite for real estate of appellant.

Appellee, in her motion to dismiss, contends that appellant failed to file her transcript within the time provided by statute. Section 3-2603, Burns' 1946 Replacement provides as follows: 'In all cases hereafter commenced or now pending in any of the courts of this state, in which a receiver may be appointed or refused, the party aggrieved may, within ten days thereafter, appeal from the decision of the court to the Supreme Court, without awaiting the final determination of such case; and in case where a receiver shall be or has been appointed, upon the appellant filing an appeal-bond with sufficient surety, in such sum as may have been required of such receiver, conditioned for the due prosecution of such appeal, and the payment of all costs or damages that may accrue to any officer or person by reason thereof, the authority of such receiver shall be suspended until the final determination of such appeal.'

The order of the trial court appointing the receiver was made on September 24, 1951. The time for appeal would have expired on October 4, 1951. On October 3, 151, an application was filed with this court requesting an extension of time for the filing of the transcript and assignment of errors, the request for extension being made under Rule 2-2 of this court, which provides as follows: 'In all appeals and reviews the assignment of errors and transcript of the record must be filed in the office of the clerk of the Supreme Court within 90 days from the date of the judgment or the ruling on the motion for a new trial, unless the statute under which the appeal or review is taken fixes a shorter time, in which latter event the statute shall control. If within the time for filing the assignment of errors and transcript, as above provided, it is made to appear to the court to which an appeal or review is sought, notice having been given to the adverse parties, that notwithstanding due diligence on the part of the parties seeking an appeal or review, it has been and will be impossible to procure a bill of exceptions or transcript to permit the filing of the transcript within the time allowed, the court to which the appeal or review is sought may, in its discretion, grant a reasonable extension of time within which to file such transcript and assignment of errors. When the appellant is under legal disability at the time the judgment is rendered, he may file the transcript and assignment of errors within 90 days after the removal of the disability.'

The notice of the application for the extension of time in which to file the transcript and the assignment of errors was given by the adverse party by service upon one of her attorneys. The petition contained grounds for the extension of time under the rule; and, as a part of the petition, the affidavit of the reporter of the trial court was attached, showing, among other things, that she reported the hearing, and that it would be impossible to prepare the transcript within the ten days allowed for appeal. This court granted the extension of time to file the transcript and assignment of errors to and including October 25, 1951. They were filed within the time allowed.

Appellee asserts that this court had not right to extend the time in which to file the assignment of errors and transcript, and could not extend the time beyond the ten days allowed for appeal, as provided by § 3-2603, Burns' 1946 Repla...