The Bank of Westfield v. Inman

• Citation: 32 N.E. 885,133 Ind. 287
• Decision Date: 22 December 1892
• Docket Number: 16,652
• Parties: The Bank of Westfield v. Inman et al
• Court: Supreme Court of Indiana

32 N.E. 885

133 Ind. 287

The Bank of Westfield v. Inman et al

No. 16,652

Supreme Court of Indiana

December 22, 1892

From the Hamilton Circuit Court.

Motion to dismiss overruled.

R. K Kane and T. P. Davis, for appellant.

W. R Fertig and H. J. Alexander, for appellees.

OPINION

Miller, C. J.

This case is before us on a motion made by the appellees to dismiss the appeal, on account of the failure of the appellant to have a notice of the appeal served upon one whose name, as an appellee, appears in the assignment of errors, and who was a necessary party to the appeal.

The record shows that the judgment was rendered on the 5th day of December, 1891, and the transcript, with the assignment of errors, was filed in this court on the 16th day of July 1892, on which day a notice for two of the three appellees was issued and served on the 18th day of the month. An entry showing that notice had been served was made by the clerk upon the transcript.

No notice was issued or served upon the other appellee prior to the filing of this motion; nor was an appearance entered for him.

On the 7th day of December, 1892, more than a year after the rendition of the judgment appealed from, this motion to dismiss was filed; and on the next day the clerk issued a notice to the other appellee.

The statute limits the time within which appeals must be taken to this court to within one year from the time the judgment is rendered. Section 633, R. S. 1881. An appeal must be fully perfected within that time; it will not be sufficient to take some steps in that direction. Elliott's App. Procedure section 128; Holloran v. Midland R. W.Co., 129 Ind. 274, 28 N.E. 549; Lawrence v. Wood, 122 Ind. 452, 24 N.E. 159; Arbuckle v. Swim, 123 Ind. 208, 24 N.E. 105; Hawkins v. McDougal, 126 Ind. 544, 25 N.E. 708.

If this appeal stood alone upon the transcript and its endorsements, we would be compelled to sustain the motion to dismiss.

It appears, from a showing made by the appellant, that the transcript was, with the assignment of errors, filed in the clerk's office, and instructions given to the deputy clerk, in charge of the office, to issue a notice for the appellees, and that the failure to include the names of all the appellees was owing to the mistake and inadvertence of the deputy clerk. That the appellants' attorneys had no notice or knowledge of the failure to give notice to all the appellees, until the filing of the motion to dismiss, being misled by the endorsement made by the clerk on the transcript, showing that notice had been given.

We have held that this court possesses the inherent power to relieve against accidents and excusable mistakes in proper cases. Hutts v. Martin, 131 Ind. 1, 30 N.E 698; Smythe v. Boswell, 117 Ind. 365, 20 N.E. 263. In the former case the appellant, upon a showing that the...