Sacks v. WINKLER , 141 Ind. App. 13 ( 1967 )

Bierly, J.

This appeal emanates from the Marion Circuit Court of Marion County, as a result of said court’s actions in dismissing appellant’s (plaintiff below) complaint for want of prosecution.

The pertinent dates, following the filing of the complaint on the 12th day of May, 1961, are summarized as follows:

On June 28, 1961, the defendants filed their answer, thus putting the cause at issue. Nothing was done until September 22, 1964, when the trial court placed the case on call of the docket which was set for October 15, 1964.

Evidently it was taken off the call of the docket for the next pleading was filed on November 13, 1964. This was a petition for conditional examination of the plaintiff, and also an order on said petition was issued for plaintiff to appear for said examination on a day named. He did not appear.

On January 13, 1965, a second petition for conditional examination and order on same was filed and issued.

Then, on January 29, 1965, the defendant filed a motion to dismiss said cause of action in accordance with Burns’ Anno. Stat. Section 2-901. The cause was dismissed on February 16, 1965, and on February 23, 1965, the plaintiff filed a motion to reinstate, which was granted but later was rescinded on the same date by the court.

On March 1, 1965, the defendant filed a motion in opposition to plaintiff’s motion to reinstate. The trial court overruled plaintiff’s motion to reinstate said cause on September 3, 1965.

On October 1,1965, plaintiff filed his motion for a new trial. Since there had been no trial this motion was a nullity. Therefore, it could not serve to extend the time for perfecting the appeal.

On May 9, 1966, the transcript and assignment of errors was filed with the Clerk of the Supreme and Appellate Court.

It thus appears from the record that the cause was dismissed on February 16, 1965, but that the assignment of errors and transcript were not filed until May 9, 1966, as above stated.

It is well settled law that a dismissal of a cause of action by a trial court is a final judgment from which an appeal lies, and that a motion for a new trial in such cases is a nullity. Meier, etc. v. Soc. Sec. Adm. et al. (1958), 237 Ind. 421, 146 N. E. 2d 239, and cases cited therein.

Such being the case, the time in which appellant in this cause had to perfect his appeal commenced with the dismissal of the action in the trial court and not with the date on which his motion for a new trial was overruled, since such motion was a nullity.

Rule 2-2 of the Rules of the Supreme Court provides in part:

“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 ninety [90] days from the date of the judgment. . . .”

Since appellant has not perfected his appeal within the time allowed by Rule 2-2, supra, we have no jurisdiction in the matter and must dismiss the appeal.

Appeal dismissed.

Pfaff, P. J., concurs; Smith, J., concurs.

Cook, J., not participating.