Coal Operators Casualty Co. v. Randolph

125 Ind. App. 364 (1954)

122 N.E.2d 737

COAL OPERATORS CASUALTY CO. v. RANDOLPH.

No. 18,591.

Court of Appeals of Indiana.

Filed December 2, 1954.

Rehearing denied January 31, 1955.

Transfer denied March 21, 1955.

Youngblood, McCray & Clark, of Evansville, for appellant.

John J. Jennings, of Evansville, for appellee.

KELLEY, C.J.

Action by appellee to recover of appellant the amount of a judgment recovered by appellee against appellant's insured. Trial by jury. Verdict for appellee. Judgment against appellant upon the verdict.

Appellant appeals from the overruling of its motion for a new trial, which action by the court is the sole assignment of error.

*365 Appellant filed its brief in the Clerk's Office on October 27, 1954, accompanied by a verified proof of service which stated that on October 26, 1954, the affiant "mailed" one copy of the brief to appellee's attorney in Evansville, Indiana.

Appellee, by verified amended motion, moves to dismiss this appeal upon the ground, supported by affidavits, that the brief was not received by him until October 28, 1954. Appellant has not contested the facts averred in appellee's amended motion.

Rule 2-19, effective September 2, 1940, provides that nine copies of each brief shall be filed "together with proof of service upon the opposing party or his counsel." The depositing in the Unted States mail of a copy of the brief, addressed to the opposing party or his counsel, does not constitute service under the rule unless it is actually received by such opposing party or his counsel within the allowable time for service. Gary Railways Company v. Kleinknight (1941), 110 Ind. App. 72, 74, 36 N.E.2d 939.

We conclude, therefore, that the amended motion to dismiss this appeal should be sustained. This appeal is accordingly dismissed.

NOTE. Reported in 122 N.E.2d 737.