Concurring Opinion
Smith, J.This is an action instituted by the plaintiffs Vernon H. Krieger and Audrey Krieger, his wife, against the defendant Joseph C. Franta, appellant herein, to recover damages to a dwelling house, and to certain personal property contained therein, owned by said plaintiffs. The complaint alleged in substance that the defendant negligently and carelessly installed a furnace in said dwelling house which careless and *53negligent installation caused a fire in the dwelling house and resulted in the damages complained of.
The cause was tried by a jury and resulted in a verdict for the appellees. Judgment was duly entered on the verdict and from this judgment this appeal has been taken.
From an examination of the transcript it appears that the judgment was entered on.February 28, 1961. On May 31, 1961, the appellant filed a verified petition with this court for an extension of time within which to file his transcript and assignment of errors. On June 6, 1961, this court granted appellant’s request for an. extension of time and extended the time up to and including July 31, 1961. Thus it appears that 92 days elapsed from the date of the judgment until appellant filed his request with this court for extension of time to file his transcript and assignment of errors.
Appellant’s verified petition for extension of time asserted that the trial court entered judgment on March 2, 1961, when in truth and in fact the transcript discloses that it was entered on February 28, 1961; therefore the petition for extension of time was not timely filed.
The applicable part of Rule 2-2 of the Supreme Court, governing the filing of transcripts and petitions for extension of time, reads as follows:
“In all appeals and reviews the assignment of errors and transcript of the record must be filed in the office of the clerk of Supreme Court within ninety (90) days from the date of the judgment or the ruling on the motion for a new trial (whichever is later), unless the statute under which the appeal or review is taken fixes a shorter time, in which latter event the statute shall control. If within the time for filing the assignment of errors and transcript, as above provided, it is made to appear to the Court to which an appeal or review is sought, notice having been given to the *54adverse parties, that notwithstanding due .diligence on the part of the parties seeking an appeal or review, it has been and will be impossible to procure a bill of exceptions or transcript to permit the filing of the transcript within the time allowed, the court to which the appeal or review is sought may, in its discretion, grant a reasonable .extension of time within which to file such transcript and assignment of errors.. '..”
The record before us offers no explanation concerning the discrepancy between the date of judgment asi shown by the transcript and-the date asserted-in appellant’s petition for extension of time. When this court, on June 6, 1961, granted the petition for extension of time to file a transcript and assignment of er-" rors, it relied entirely upon the accuracy of the information contained in the verified petition. But in doing so, this court inadvertently performed a void act in granting said petition, and appellant cannot profit from such a void order.
ir In cases where misleading and incorrect affidavits fiave induced a court to enter an order, an appellent is not entitled to special consideration because he relied upon an order thus obtained. Fishback v. Public Service Commission (1923), 193 Ind. 282, 138 N. E. 346; 139 N. E. 499. In this case the court held in part as follows:
“. . . where orders made by the court were induced by affidavits, in which a répresentative of appellant made statements which, if correct, would have justified the action taken, and it appears from the record that the statements in such affidavits were incorrect, and that the court was not authorized to make such orders, appellant is not entitled to special consideration because he relied-upon the orders thus obtained.”
Due to the misrepresentation of the date Of the1 judgment as asserted in appellant’s verified ’ petition, *55this court inadvisely granted appellant’s petition, on June 6, 1961, and we withdraw said order granting the petition for extension of time and, from the facts shown, now deny the same. See, Ambuhl, etc. et al. v. Marcy (1956), 127 Ind. App. 286, 141 N. E. (2d) 139.
Rule 2-2 of the Indiana Supreme Court, supra, requires that a petition for an extension of time for the. filing of a transcript and assignment of errors shall be filed within 90 days from the time of the rendition of the judgment. The petition herein was not filed until the 92nd day after the rendition of the judgment; and, therefore, this court lacks jurisdiction to determine this case on its merits. See, Flanagan, Wiltrout and Hamilton, Indiana Trial and Appellate Practice, §§2471, 2472 (and cases cited).
Appellant having failed to abide by Rule 2-2 of the Indinana Supreme Court, this appeal is dismissed
Appeal dismissed.
Hunter, J. concurs in the concurring opinion for the reason that the question to be determined is strictly a jurisdictional question, and there is no reason for a recital of the procedural steps as set forth in the opinion of Judge Bierly.Note. — Reported in 204 N. E. 2d 868.