Fraker v. Dugan , 95 Ind. App. 213 ( 1932 )

The facts herein, as disclosed by appellee's motion to dismiss and the record, are as follows:

On March 2, 1932, the date on which motion for a new trial was overruled, final judgment in this cause was rendered by the trial court, and on this same date appellant prayed an appeal and was given ninety (90) days in which to file his bill of exceptions. On April 7, 1932, appellant filed his appeal bond, and on July 15, 1932, he filed his transcript with the clerk of this court. The record further shows that no extension of time for the filing of the transcript was asked for or granted.

From the above facts it is clearly apparent that, having failed to file his transcript with the clerk of this court within sixty (60) days from the time of filing of the appeal bond, or to 1. obtain an extension of time for the filing of said transcript, as provided by Section 698 Burns Ann. St. 1926, as amended by Acts 1917, p. 71, appellant has failed to perfect a term time appeal, and the appeal will be deemed to be abandoned as such. Town of Windfall City et al. v. The State of Indiana,ex rel. Wood (1910), 174 Ind. 311, 92 N.E. 57; Kintz v. Stateof Indiana, ex rel. Hunter (1919), 71 Ind. App. 225, 124 N.E. 739.

Appellant has also failed to perfect a vacation appeal for the reason that no notice was given or caused to be given to the appellee herein, nor has appellee received notice as 2. required by Section 700 Burns Ann. St. 1926. Section 700 Burns, supra, provides two methods for taking an appeal, and appellant has apparently relied upon the provision requiring the clerk of this court to issue notice. However, no praecipe was issued or caused to be issued directing the 3. clerk to issue notice, and this court, in the very recent case of Smallwood v. Keough et al. (1932), ante 75,182 N.E. 544, specifically held that the filing of a proper praecipe is a prerequisite to the giving of notice by the clerk of this court.

No appearance having been made by appellee, and this cause having been on the docket of this court more than ninety (90) days without appellant having taken any steps to bring 4. appellee into court, the clerk is hereby directed and ordered to enter a dismissal of this cause in accordance with Rule 36 of this court.