This is an appeal from an order denying appellant's petition for a writ of error coram nobis. The order was entered on the 27th day of May, 1949. The transcript on appeal was filed with the clerk of this court on July 8, 1949. Rule 2-40 of this court provides as follows:
"An appeal may be taken to the Supreme Court from an order granting or denying a petition for a writ of error coram nobis. The sufficiency of the pleadings and of the evidence to entitle the petitioner to the writ will be considered upon an assignment of error that the order is contrary to law. The transcript of so much of the record as is necessary to present all questions raised by appellant's propositions shall be filed with the Clerk of the Supreme Court within thirty (30) days after the date of the order. . . . ."
It appears, therefore, that this appeal was not perfected within the time allowed by the rule, and, as stated in Brady v.Garrison (1912), 178 Ind. 459, 460, 99 N.E. 738:
"It has been held uniformly by this court that an appeal must be taken within the time limited *Page 739 by statute, and that unless the transcript and assignment of errors are filed within that time there is no cause in this court. (citing cases)."
Filing the transcript in this court within time is jurisdictional, and when the record is not filed in this court on time the appeal will be dismissed. Vail v. Page (1911), 1. 175 Ind. 126, 131, 93 N.E. 705; Stocker et al. v. City of Hammond (1938), 214 Ind. 628, 630, 16 N.E.2d 874;Anderson v. Lagow (1942), 220 Ind. 363, 368, 41 N.E.2d 798;Grider v. Titus (1948), 118 Ind. App. 473, 476-7,80 N.E.2d 570; Powers v. C.C.C. St. L. Ry. Co. (1930),96 Ind. App. 517, 518, 170 N.E. 107; Gundy, Admr. v. McDowell Lumber Co. (1933), 97 Ind. App. 638, 640, 185 N.E. 869; Taughinbaugh v.State of Indiana (1928), 88 Ind. App. 160, 161, 163 N.E. 599;Keller v. Hatfield (1945), 116 Ind. App. 105, 106,62 N.E.2d 400.
In Vail v. Page, supra, Judge Douglas Morris, speaking for this court, said,
"Without discussing the question of the waiver of the right to file the petition to dismiss by reason of the failure to file the bond, it is sufficient to say that by failure to file the transcript within the statutory period of 100 days, this court never acquired jurisdiction of the appeal, and, in such case, it would be the duty of the court, on its own motion, to order a dismissal. (citing cases)."
In Gundy, Admr. v. McDowell Lumber Company, supra, it is said,
"The filing of the transcript within the time fixed by the statutes is jurisdictional and if filed too late, the appeal must be dismissed."
Rule 2-40 provides that in the type of action here involved the transcript shall be filed with the Clerk of *Page 740 this court within 30 days after the date of the order and 2. the transcript not having been so filed this court is without jurisdiction.
It is true that in this case a motion for a new trial was filed on June 9, 1949, and was overruled on the same day and the transcript was filed herein on the 30th day thereafter. In the motion for a new trial the only error assigned was that the court erred in denying defendant's motion and petition for a writ of error coram nobis. It was not alleged in the motion for a new trial that the action of the court was contrary to law. The filing of this motion for a new trial did not serve to extend the time for perfecting the appeal herein.
Motions for a new trial are not contemplated in coram nobis proceedings. Fluty v. State (1946), 224 Ind. 652, 656, 71 N.E.2d 565; Lucas v. State (1949), 227 Ind. 486, 86 3. N.E.2d 682, 683. These cases are based upon the language of the rule above quoted and the provision therein that questions on the pleading and evidence will be considered upon assignment of error that the order is contrary to law. The provision in the rule that the transcript shall be filed in this court within 30 days after the date of the order granting or denying such petition is mandatory, and the fact that there is no mention of any motion for a new trial is significant, because the rule with reference to other appeals provides that the transcript of the record must be filed in the office of the clerk of this court within 90 days from the date of the judgment or the rulingon the motion for a new trial. Rule 2-2. The failure of the court to incorporate in Rule 2-40 mention of a motion for a new trial and to make the time for filing transcript run from the ruling upon such motion, together with the provision that all questions *Page 741 will be considered upon an assignment of error that the order is contrary to law, make it clear that no motion for a new trial was necessary and that the time for lodging the appeal should run from the date of the order.
Because of failure to file the transcript in this case within the time fixed by the rules, this court is without jurisdiction and this appeal is dismissed.
Emmert, J., dissents with opinion.
Gilkison, J., dissents and concurs in dissenting opinion.
NOTE. — Reported in 89 N.E.2d 281.