Shew v. Woody

ON PETITION FOR REHEARING.

On petition for a rehearing on judgment dismissing this cause for want of jurisdiction, and for reinstatement of cause on the docket. On April 23, 1924, on objection to jurisdiction by appellee, this cause was dismissed, the transcript of the record herein having been filed in the office of the clerk of this court 194 days after the final judgment had been rendered.

The appellee in her brief had challenged the jurisdiction of this court to hear and decide said cause by reason of the failure of appellant to file said transcript within the time limited by § 672 Burns 1914, Acts 1913 p. 65.

The appellant now asks that said judgment of dismissal be set aside and said cause be reinstated and decided on its merits. As a ground for this motion, he urges that the Act of 1913 (Acts of 1913, ch. 36, p. 65) which fixed and limited the time within which an appeal might be taken to 180 days, (§ 672 Burns 1914) is unconstitutional and void, and that the time within which the said transcript might have been filed was one year after final judgment, as fixed by § 408 R.S. 1881.

If the appellant, when challenged as to this matter by the appellee, had then duly presented this matter of the constitutionality of said act of 1913, it would then have been our duty to transfer the matter to the Supreme Court for its consideration; but instead of so doing, he entirely ignored the matter in his reply brief; he did not speak when he should have spoken and therefore must be considered as having waived the matter in question. Appellant's petition, therefore, must be and is hereby denied.