Rook v. Strauss Bros. Co.

• Decision Date: 09 February 1915
• Docket Number: No. 8924.,8924.
• Citation: 58 Ind.App. 82,107 N.E. 692
• Parties: ROOK et al. v. STRAUSS BROS. CO.
• Court: Indiana Appellate Court

58 Ind.App. 82

107 N.E. 692

ROOK et al.

v.STRAUSS BROS. CO.

No. 8924.

Appellate Court of Indiana, Division No. 1.

Feb. 9, 1915.

Appeal from Circuit Court, Adams County; Charles E. Sturgis, Judge.

Action by Rhoda C. Rook and others against the Strauss Bros. Company. Judgment for defendant, and plaintiffs appeal. On motion for leave to file an amended assignment of errors. Denied.

S. A. D. Whipple & Son and La Follette & McGriff, all of Portland, for appellants. Hooper & Lenhart and Heller, Sutton & Heller, all of Decatur, for appellee.

SHEA, J.

The record in this case is rather indefinite as to dates. It is clear, however, that the decree was rendered and motion for new trial overruled prior to January 27, 1914. On January 27, 1914, an appeal was prayed and a bond filed. The transcript was filed in this court, certified to by the clerk of the Adams circuit court on February 26, 1914. On October 10, 1914, a petition was filed on behalf of appellants asking leave to file an amended assignment of errors.

[1] It is provided by statute that appeals must be taken within 180 days from the time judgment was rendered, but the courts have held in case the judgment precedes the ruling on the motion for a new trial; that the time for taking an appeal begins to run from the date on which the motion for a new trial is overruled. Section 672, Burns 1914 (Acts 1913, p. 65).

[2] “The assignment of errors constitutes the complaint on an appeal, and it must be filed within the time allowed by the statute. This court has no power to extend the time for perfecting an appeal beyond that fixed by the Legislature. No showing, however strong, can be considered as sufficient to warrant the exercise of a power which the court does not possess.” Huber v. Tielking, 103 N. E. 853, 854.

The granting of the motion to file an amended assignment of errors in this case would be in effect to permit the filing of a new assignment of errors, as it would completely change the issues raised.

The motion for leave to file an amended assignment of errors is therefore overruled.