Foerg v. Hoover

Concurring Opinion

Achor, J.

— As stated by Jackson, J., “On the pleadings before us it thus appears that the question to be resolved is, did the appellants comply with the statute relative to the appeal? (§27-117, supra”) The. pertinent part of the statute pertaining to appeals is as follows:

“ . . . An appeal may be taken from the final judgment of the circuit or superior court to either the Supreme or Appellate Court of Indiana, within thirty [30] days. A transcript of the record of such appeals and all bills of exceptions shall be *213filed in the office of the clerk of the Supreme or Appellate Court within sixty [60] days after the filing of the appeal bond. ...” [My italics.] §27-117, Burns’ 1960 Repl.

The above statute has twice been construed by this court. In those cases we have held that appeals, taken from judgments establishing drains must be perfected by the filing of an appeal bond within 30 days from the date of the judgment, and the filing of the transcript with the clerk of the Supreme Court within 60 days after the filing of the bond. Neibert v. Long (1916), 184 Ind. 494, 111 N. E. 612; Brady v. Garrison (1912), 178 Ind. 459, 99 N. E. 738.

In this case the motion for new trial was overruled on February 16, 1962. However, appellants’ petition asking that the court fix the terms of an appeal bond was not filed until April 27,1962.

Thus appellants having failed to timely prosecute the first step in their appeal according to the terms of the statute, as heretofore construed by this court, the purported appeal must be dismissed.

Note. — Reported in 197 N. E. 2d 524.