Morton-Finney v. Jennings

• Decision Date: 22 October 1968
• Docket Number: No. 668,MORTON-FINNEY and P,No. 2,668,2
• Citation: 241 N.E.2d 77,143 Ind.App. 429
• Parties: Johnauline Morton-Finney, Appellants, v. James W. JENNINGS, Appellee. A 108
• Court: Indiana Appellate Court

Page 77

241 N.E.2d 77

143 Ind.App. 429

John MORTON-FINNEY and Pauline Morton-Finney, Appellants, v. James W. JENNINGS, Appellee.

No. 668 A 108.

Appellate Court of Indiana, Division No. 2.

Oct. 22, 1968.

Rehearing Denied Nov. 26, 1968.

John Morton-Finney, pro se.

No appearance for appellee.

PFAFF, Judge.

A judgment was entered in a quite title action, quieting title to certain real estate in plaintiff as against the defendants, appellants herein. Appellants' motion for a new trial was overruled, and appellants initiated an appeal by the filing of a praecipe, but the appeal was never perfected and the time for taking an appeal expired. Thereafter, after the time for appeal had expired, appellants filed the present action for a review of the judgment in the quiet title action for alleged errors of law. The action to review was filed more than one year after the date of the overruling of the motion for new trial. A motion to dismiss the action to review was filed by appellee. This motion was sustained and the action to review was dismissed. This appeal is from the jugment of dismissal.

An action to review for errors of law and an appeal are alternative remedies. Acme-Goodrich, Inc. v. Neal, Executor etc. (1959), 129 Ind.App. 614, 156 N.E.2d 790, 158 N.E.2d 299 (Transfer denied). The action to review is a substitute for an appeal, In re Boyer's Guardianship (Rittenour v. Hess) (1933), 96 Ind.App. 161, 174 N.E. 714 (Transfer denied), and the adoption of one remedy is a waiver of the right to prosecute the other. Talge Mahogany Co. v. Astoria Mahogany Co. (1924), 195 Ind. 433, 141 N.E. 50, 145 N.E. 495.

Where a complaint to review a judgment for errors of law is filed after the time for perfecting an appeal has expired, there may be no appeal from a judgment denying relief to the complainant. Mathis v. Clary (1968), Ind.App., 231 N.E.2d 157 (Transfer denied); Browne v. Blood (1964), 245 Ind. 447, 196 N.E.2d 745, 199 N.E.2d 712; In re Boyer's Guardianship (Rittenour v. Hess), supra; American Creosoting Co. v. Reddington (1925), 83 Ind.App. 365, 146 N.E. 761 (Transfer denied); Talge Mahogany Co. v. Astoria Mahogany Co., supra.

Appeal dismissed.

BIERLY and SMITH, JJ., concur.

COOK, P.J., not participating.