Schilling v. Ritter, 19925

• Decision Date: 03 January 1963
• Docket Number: No. 19925,19925
• Citation: 186 N.E.2d 887,134 Ind.App. 168
• Parties: John A. SCHILLING, Appellant, v. Melvin RITTER, Appellee.
• Court: Indiana Appellate Court

Page 887

186 N.E.2d 887

134 Ind.App. 168

John A. SCHILLING, Appellant, v. Melvin RITTER, Appellee.

No. 19925.

Appellate Court of Indiana, In Banc.

Jan. 3, 1963.

Murray, Mannon, Fairchild & Stewart, Indianapolis, for appellant.

Armstrong, Gause, Hudson & Kightlinger, Indianapolis, for appellee.

COOPER, Chief Justice.

This matter is an attempted appeal from the Shelby Circuit Court wherein the appellant herein, John Schilling, was the plaintiff below, and the appellee herein, Melvin Ritter, was the defendant below.

It appears that judgment was rendered in favor of the appellee herein on the 26th day of May, 1962, and that on the 22nd day of June, 1962, the appellant filed his motion for a new trial which was overruled by the trial court on June 23, 1962. Thereafter, appellant filed a praecipe with the Clerk of the Shelby Circuit Court to initiate this attempted appeal.

This matter is now before us upon the appellant's petition for extension of time within which to file transcript and assignment of errors, together with affidavit and memorandum in support thereof. To the appellant's petition for extension of time to file transcript and assignment of errors, the appellee timely filed his objections to said petition averring, among other things, that the appellant's petition for extension of time within which to file transcript and assignment of errors was not filed in the office of the Clerk of the Supreme and Appellate Courts until the 23rd day of October, 1962, and, therefore, was not filed within the ninety (90) day period from the date of the judgment or the ruling of the motion for a new trial.

We judicially know that Rule 2-2 of the Supreme Court of Indiana provides:

'Time for Appeal or Review. 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 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.'

We do not deem it necessary to cite authority that the Rules of the Supreme Court have the force and effect of law and the pertinent part of the aforesaid Rule provides, in substance, that an appeal must be perfected within ninety days from the date of judgment or the ruling on the motion for a new trial, unless the statute fixes a shorter time or an extension of the time is granted by the appellate tribunal on the proper petition.

The general rule of law is that the failure to file a transcript of record and assignment of errors within the time limited by law or the Supreme Court rule unless said time is extended by the order of the appellate tribunal, the appeal will be dismissed, as timely filing is jurisdictional. See, § 2524, Flanagan, Wiltrout & Hamilton's Indiana Trial and Appellate Practice; Joyner, etc. v. The Housing Authority, etc., (1959), 130 Ind.App. 167, 162 N.E.2d 685; Meier v. Social Security Administration (1957), 237 Ind. 421, 146 N.E.2d 239; Higginson v. State (1957), 237 Ind. 256, 142 N.E.2d 435; Dawson v. Wright (195...