Rodgers v. Rodgers, 20188

• Decision Date: 11 June 1965
• Docket Number: No. 20188,20188
• Parties: H. Gene RODGERS, Jack Rodgers, Earl Rodgers, Mary Bushong, Lucile Bryan, Kathryn Willson, Mary Sue Chancey, and Billie James Rodgers, a minor, by Mary Sue Chancey, his next friend, Appellants, v. Frank Bennett RODGERS, Appellee.
• Court: Indiana Appellate Court

Page 654

207 N.E.2d 654

137 Ind.App. 290

H. Gene RODGERS, Jack Rodgers, Earl Rodgers, Mary Bushong Lucile Bryan, Kathryn Willson, Mary Sue Chancey and Billie James Rodgers, a minor, by Mary Sue Chancey, his next friend, Appellants, v. Frank Bennett RODGERS, Appellee.

No. 20188.

Appellate Court of Indiana, In Banc.

June 11, 1965.

[137 INDAPP 291] Barrett, Barrett & McNagny, Bloom & Bloom, Ft. Wayne, for appellants.

Deller, Dygert & Friend, Angola, for appellee.

PER CURIAM.

On November 17, 1964, this court, upon appellants' petition, granted a third extension of time in which to file transcript and assignment of errors to and including February 10, 1965. On February 9, 1965, appellants filed their fourth petition for extension of time to file transcript and assignment of errors. On February 18, 1965, appellants filed their supplemental petition for further extension of time within which to file transcript and assignment of errors. On March 17, 1965, this court denied said petition filed on February 9, 1965, and said supplemental petition filed on February 18, 1965.

On April 9, 1965, appellee duly filed his motion to dismiss the appellants' appeal.

Rule 2-2 of the Supreme Court, 1964 Edition, reads, in pertinent part, 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 Supreme Court within ninety (90) days from the date of the judgment or the ruling on the motion for a new trial (whichever is later), unless the statute under [137 INDAPP 292] 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. * * *'

The time within which an appeal must be perfected is jurisdictional and an appeal is said to be taken only when a transcript and assignment of errors are filed in the office of the Clerk of the...