Wagoner's Estate, In re, 19,459

Decision Date11 April 1960
Docket NumberNo. 19,459,19,459
Citation166 N.E.2d 184,130 Ind.App. 494
PartiesIn re ESTATE of George N. WAGONER, Deceased. Mabel F. WAGONER, Administratrix of the Estate of George N.Wagoner, Deceased, Appellant, v. MARTIN COUNTY BANK, Joe E. Harding, Standard Oil Company, an Indiana Corporation, Appellees.
CourtIndiana Appellate Court

Mellen & Mellen, Bedford, Gray & Waddle, Petersburg, for appellant.

Seal & Seal, Washington, Falls & Pickett, Shoals, for appellees.

MYERS, Chief Justice.

This is an appeal from a judgment of the Martin Circuit Court entered June 5, 1959, wherein three claims filed by appellees were allowed against appellant's decedent's estate. Appellant filed her motion for a new trial, which was overruled on December 7, 1959. The time for filing the assignment of errors and transcript of the record with the Clerk of the Appellate Court was within ninety days from the ruling on the motion for new trial. The expiration date was March 6, 1960, but due to the fact that day fell on Sunday, the time for filing included the first day thereafter, being March 7th. Supreme Court Rule 2-9.

On that day appellant filed in this court her verified petition for an extension of time in which to file the transcript and assignment of errors, based upon the inability of the official court reporter of the Martin Circuit Court to complete the transcript in time. One of the attorneys for the appellant filed his affidavit with said petition for extension of time in which he stated as follows:

'on March 7, 1960, he served a copy of said petition by mail upon Falls & Pickett, Attorneys at Law, Shoals, Indiana, they being attorneys of record for the claimant, The Martin County Bank, and upon Seal & Seal, Attorneys at Law, Washington, Indiana, they being attorneys of record for the claimants, Standard Oil Company, an Indiana Corporation, and Joe E. Harding.'

This court, on March 7, 1960, relying on said representation, granted appellant's petition for extension of time up to and including June 6, 1960.

On March 15, 1960, appellees appeared specially pursuant to Rule 2-11 of the Supreme Court, and filed their duly verified motion to dismiss the appeal because it was not perfected in time. They assert that, under Rule 2-2 of the Supreme Court, no notice of intent to file the petition was served upon them by March 7, 1960. They state that they received through the United States mail, on March 8, 1960, a copy of appellant's petition for extension of time, and that the service of a copy of the petition does not comply with the rule. They further state that, pursuant to Rule 2-13 of the Supreme Court, no copy of the petition was served upon appellees within the time allowed for filing the petition, and that, accordingly, this court is without jurisdiction and the appeal should be dismissed.

The pertinent part of Rule 2-2 reads as follows:

'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.' (Our emphasis.)

Rule 2-13 reads as follows:

'Within the time allowed for filing motions and petitions, and briefs in support thereof, copies shall be served upon the parties affected, or their attorneys of record, and proof of such service shall be made at the time of filing or promptly thereafter.'

It is noted that Rule 2-13 is comprehensive in that it embraces all motions, petitions and briefs in support thereof, stating that a copy shall be served within the time allowed for filing the same. We believe this includes a petition for extension of time to file transcript and assignment of errors. Each party has cited the case of McConnell v. Fulmer, 1952, 230 Ind. 576, 581, 103 N.E.2d 803, 804, 805, 105 N.E.2d 817, where the court stated:

'Rule 2-13 does not apply to an application for extension of time to file a transcript and assignment of errors, although it would have been better practice to have served a copy upon appellee or her attorneys.'

In that case a notice had been served upon the adverse party, but not a copy of the petition. The court merely indicates that Rule 2-2 calls for a notice only and that therefore Rule 2-13 does not apply in its requirement for service of a copy of the petition on the adverse party. However, the service of a copy of the petition would seem to meet the demands of a service of a notice, so it appears that when filing a petition to extend the time for filing a transcript and assignment of errors, the appellant has his option of serving a notice on appellee or a copy of the petition, or both if he sees fit. Flanagan, Wiltrout & Hamilton's Indiana Trial and Appellate Practice, § 2752, p. 350.

The real question involved herein is whether or not appellant gave notice to app...

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