Brindle v. Anglin

246 Ind. 601 (1965) 208 N.E.2d 476

BRINDLE
v.
ANGLIN ET AL.

No. 30,804.

Supreme Court of Indiana.

Filed June 30, 1965.

Probst and Probst, of Kendalville, for appellant.

Grimm & Grimm, of Auburn, for appellees.

PER CURIAM.

The opinion of the Appellate Court fails to consider a primary issue in the case, presented by appellees' motion to dismiss. Therefore, transfer of the case is granted, under Rule 2-23 (4) (a) of this court.

The motion to dismiss is predicated upon the fact that the Chief Justice of the Appellate Court granted a second extension of time in which to file transcript and assignment of errors, such second petition having been filed 13 days after the expiration of the time previously granted by the Appellate Court on the first petition for extension of time.

The motion to dismiss was denied pending briefing of the case on the merits.

However, as above noted, the Appellate Court in its opinion failed to consider this substantial issue, and considered the case solely upon the merits, by which procedure it contravened the ruling precedent of this court to the effect that the timely filing of a transcript and assignment of errors is jurisdictional.^[1]

In this case the only excuse given for the failure to timely file a second petition for extension of time was the fact that one of the members of the firm prosecuting the appeal was in the hospital. However, from the record it appears that the other member of the firm, Robert C. Probst, took an active part in the trial of the cause and, in the Appellate Court by his verified statement, procured the first extension of time within which to file transcript and assignment of errors.

We therefore accept transfer and order the cause dismissed for failure to comply with Rule 2-2 of this court.

Transfer accepted. Appeal dismissed.

Jackson, C.J. concurs in result.

NOTE. — Reported in 206 N.E.2d 476.

NOTES

[1] e.g. Bowers, et al. v. Thornburg, et al. (1961), 242 Ind. 272, 177 N.E.2d 665;

Meier, etc. v. Soc. Sec. Adm. et al. (1958), 237 Ind. 421, 146 N.E.2d 239;

Higginson v. State (1957), 237 Ind. 256, 142 N.E.2d 435;

Dawson et al. v. Wright, Mayor, etc., et al. (1955), 234 Ind. 626, 129 N.E.2d 796;

Taylor et al. v. Meskimen et al. (1955), 234 Ind. 485, 128 N.E.2d 872.