Tourkow v. Hoover, No. 18345

Docket NºNo. 18345
Citation122 Ind.App. 676, 108 N.E.2d 195
Case DateOctober 15, 1952
CourtCourt of Appeals of Indiana

Page 195

108 N.E.2d 195
122 Ind.App. 676
TOURKOW

v.
HOOVER.
No. 18345.
Appellate Court of Indiana, in Banc.
Oct. 15, 1952.

[122 Ind.App. 677] Tourkow & Dennis, Ft. Wayne, Arthur W. Meyring, Dayton, Ohio, of counsel, for appellant.

Campbell, Livingston, Teeple & Dildine, Ft. Wayne, for appellee.

[122 Ind.App. 678] ACHOR, Chief Judge.

Appellee, on August 8, 1952, filed his motion to dismiss this appeal for the reason that the assignment of errors and transcript of record were not filed within 90 days after the overruling of appellant's motion for a new trial by the trial court. No reply was filed to said motion by appellant, but thereafter, on September 18, 1952, appellant's petition for an extension of time in which to file transcript and bill of exceptions was received by the Clerk of this court.

The record discloses that the motion for a new trial was overruled in the cause on February 2, 1952. That the appellant filed the transcript of record and assignment of errors in the cause on May 31, 1952, which date was 29 days after the expiration of

Page 196

the time allowed by Rule 2-2 of the Rules of the Supreme Court of Indiana. Said rule is 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 the 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 fixed a shorter time, in which latter event the statute shall control. * * *.'

Appellant states that the delay in filing the transcript and bill of exceptions was occasioned by 'some miscalculation' on the part of the appellant. Appellant asks that under the inherent power of the court it grant the extension of time for the filing of transcript and bill of exceptions in this cause. The cases of State ex rel. Cook v. Howard, 1945, 223 Ind. 694, 64 N.E.2d 25, and State ex rel. Barnes v. Howard, [122 Ind.App. 679] 1946, 224 Ind. 107, 65 N.E. 55, are cited as authority for such inherent power of the court.

However, the circumstances in the cases cited and the facts in the case before us are widely divergent. In the cases cited, the appellants were, by physical restraint on the part of public officials, prevented from perfecting their appeal within the time provided by Rule 2-2. In the case at bar the only excuse for such extension of time was 'some miscalculation' on the part of appellant.

The rule upon this issue is well established that, where an appellant is, by physical restraint or by fraud on the part of appellee, prevented from perfecting his appeal in time, or where...

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8 practice notes
  • Means v. Seif Material Handling Co., No. 2--672A27
    • United States
    • September 11, 1973
    ...cases, such as matters of great public interest, or where extraordinary circumstances exist.' And in Tourkow v. Hoover (1952) 122 Ind.App. 676, 679--680, 108 N.E.2d 195, 196--197, the court [157 Ind.App. 496] 'The rule upon this issue is well established that, where an appellant is, by phys......
  • Hanson's Estate, In re, Nos. 9321-9321A
    • United States
    • Montana United States State Supreme Court of Montana
    • July 29, 1954
    ...481; Detroit G. R. & W. R. R. Co. v. Eaton, 128 Mich. 495, 87 N.W. 641; State v. Arnold, 51 N.M. 311, 183 P.2d 845; Tourkow v. Hoover, 122 Ind.App. 676, 108 N.E.2d 195; 4 C.J.S., Appeal & Error, Sec. 428, p. Respondent's motion to dismiss the appeals is granted. The appeals are ordered dism......
  • White v. Livengood, No. 2-178A10
    • United States
    • Indiana Court of Appeals of Indiana
    • June 18, 1979
    ...from the consequences of his own negligence . . . such as failure to calculate the time limits correctly. Tourkow v. Hoover (1952), 122 Ind.App. 676, 108 N.E.2d 195. Accordingly, we find nothing in this record to indicate anything other than neglect on White's part in pursuit of this appeal......
  • Wente v. State, No. 3-282A28
    • United States
    • Indiana Court of Appeals of Indiana
    • October 12, 1982
    ...a party from the consequences of his own negligence, such as failure to calculate the time limits correctly. Tourkow v. Hoover (1952), 122 Ind.App. 676, 108 N.E.2d 195, 196. Since this is not a case of great public interest, or one in which extraordinary circumstances exist, we should not i......
  • Request a trial to view additional results
8 cases
  • Means v. Seif Material Handling Co., No. 2--672A27
    • United States
    • September 11, 1973
    ...cases, such as matters of great public interest, or where extraordinary circumstances exist.' And in Tourkow v. Hoover (1952) 122 Ind.App. 676, 679--680, 108 N.E.2d 195, 196--197, the court [157 Ind.App. 496] 'The rule upon this issue is well established that, where an appellant is, by phys......
  • Hanson's Estate, In re, Nos. 9321-9321A
    • United States
    • Montana United States State Supreme Court of Montana
    • July 29, 1954
    ...481; Detroit G. R. & W. R. R. Co. v. Eaton, 128 Mich. 495, 87 N.W. 641; State v. Arnold, 51 N.M. 311, 183 P.2d 845; Tourkow v. Hoover, 122 Ind.App. 676, 108 N.E.2d 195; 4 C.J.S., Appeal & Error, Sec. 428, p. Respondent's motion to dismiss the appeals is granted. The appeals are ordered dism......
  • White v. Livengood, No. 2-178A10
    • United States
    • Indiana Court of Appeals of Indiana
    • June 18, 1979
    ...from the consequences of his own negligence . . . such as failure to calculate the time limits correctly. Tourkow v. Hoover (1952), 122 Ind.App. 676, 108 N.E.2d 195. Accordingly, we find nothing in this record to indicate anything other than neglect on White's part in pursuit of this appeal......
  • Wente v. State, No. 3-282A28
    • United States
    • Indiana Court of Appeals of Indiana
    • October 12, 1982
    ...a party from the consequences of his own negligence, such as failure to calculate the time limits correctly. Tourkow v. Hoover (1952), 122 Ind.App. 676, 108 N.E.2d 195, 196. Since this is not a case of great public interest, or one in which extraordinary circumstances exist, we should not i......
  • Request a trial to view additional results

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