Steinmetz v. Lucas
| Decision Date | 04 January 1929 |
| Docket Number | No. 13422.,13422. |
| Citation | 89 Ind.App. 12,164 N.E. 320 |
| Parties | STEINMETZ v. LUCAS. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Grant Circuit Court; J. F. Charles, Judge.
Action by Frank W. Lucas against George J. Steinmetz. Judgment for plaintiff, and defendant appeals. Appeal dismissed.Butler & Butler and Jos. N. Tillett, all of Peru, Ind., and Condo & Batton, of Marion, for appellant.
Meade S. Hays, of Marion, and Russell J. Wildman, of Peru, Ind., for appellee.
Appellee enters his special appearance for the sole purpose of filing and presenting his verified motion to dismiss the appeal herein, and in support of his motion says that the cause was tried in the Grant circuit court, and, after a verdict for appellee, appellant filed his motion for a new trial, which was overruled on February 16, 1928, and on said date final judgment was rendered against appellant on the verdict, and appellant prayed an appeal to this court, which was granted upon filing appeal bond in the penal sum of $12,000 within 60 days, and 120 days was given for filing all bills of exceptions; that appellant never filed any appeal bond, but he did procure a transcript of the evidence in said cause, and filed the same with the clerk of this court on August 11, 1928; that on April 27, 1928, appellant served a notice of appeal upon appellee's attorney of record, and that on April 20, 1928, a like notice was served on the clerk of the Grant circuit court, and no other or different notice of said appeal has ever been served upon appellee or his attorneys; that appellant never filed any præcipe with the clerk of this court for the issuance of notice of appeal, and that this cause has now been on docket for more than 90 days without there being an appearance by appellee, and that appellant has not taken any steps to bring appellee into court, or to cause any notice of appeal to be issued or served on appellee; and that by reason of each of said facts the appeal should be dismissed, at the cost of appellant.
Appellant states the facts substantially as above, but says that, at the time the transcript and the assignment of errors were filed with the clerk of this court, the clerk examined the same and declared the notices served below were sufficient, and entered upon the docket of this cause the date of the filing of the transcript and the assignment of errors, and also the notation, “Notices served below.” Appellant further says that, in giving said notices and in perfecting said appeal as aforesaid, he and his attorneys believed and assured themselves they were proceeding by the law of procedure governing the making of vacation appeals in civil cases, and did convince themselves and were thereby assured that they were in all things perfecting such appeal and giving the unofficial notice thereof in full and strict compliance with the statutes of the state, and acting with such knowledge filed said transcript and were assured by the clerk of this court that the required notices had been given as shown by the record of the transcript, and the cause was thereby docketed and recorded by the clerk of the court as a pending appeal with notice given below, and appellant and his attorneys as aforesaid, depending upon the provisions of the statute and the docket entries of said cause, and not being advised of and not having their attention called to rule No. 2 of this court, were thereby assured and believed, and had reason to believe, that jurisdiction of appellee in this cause had been legally and effectually obtained.
[1] The statute with which appellant undertook to comply is...
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