In our opinion the petition to transfer here does not raise any adequate ground for transfer on the merits of the issues decided by the Appellate Court. 123 Ind. App. ___, 105 N.E.2d 830, and 123 Ind. App. ___, 106 N.E.2d 812. The petition does assert as a ground for transfer under Rule 2-23 (4) (c) that the Appellate Court failed to give a statement in writing of each substantial question arising on the record and the decision of the court thereon. This brings into consideration the effect of a petition for rehearing in the Appellate Court.
"If, in disposing of the case on appeal, the court fails to give express or full consideration to questions presented, the remedy of the complaining party is by petition for a rehearing." Stevens v. Templeton (1910), 174 Ind. 129, 131, 91 N.E. 563. "The petition should ask a rehearing only on points that were properly presented for decision at the first hearing, and were overlooked or improperly decided." Kilgallen v. State (1921), 192 Ind. 531, 546, 132 N.E. 682, 137 N.E. 178. Rule 2-23 only grants the right to a transfer "within 20 days after a petition for rehearing has been denied." Our court has held that if a petition to transfer fails to disclose that a petition for rehearing in the Appellate Court was denied, no question is presented upon the merits of the Appellate Court opinion. See our per curiam opinion as reported in Steel Construction Co. v. Rossville Alcohol & Chemical Co. (1938), 105 Ind.App. 520, 523, 16 N.E.2d 698. It is obvious that the Appellate Court should have an opportunity to correct its own omissions or errors by having the same called to its attention in a petition for rehearing. The petition for rehearing in this appeal
On December 12, 1951, which was within the ninety day period for perfecting the appeal under Rule 2-2, appellants filed their petition for an extension of time to file transcript and assignment of errors, and on this petition the Appellate Court granted to and including February 4, 1952, to perfect the appeal. However, the record here fails to show any notice given to appellees of the filing of this petition as required by Rule 2-2.
It is well settled that the failure to perfect an appeal within time deprives the court of jurisdiction of the subject matter appealed, and the court on its own
Our rules define what should be considered a general appearance and a special appearance as follows:
Appellees failed to file a special appearance but did file their answer brief upon the merits in which they attempted also to raise the question of jurisdiction to enter the order granting the extension of time to perfect the appeal. When the appellees filed their brief on the merits they waived the question of jurisdiction of their person to enter the order for the extension of time. It is analogous to the defendant waiving matters in abatement by pleading matters in abatement in the same pleading with matters in bar.
The transfer is denied.
NOTE. — Reported in 108 N.E.2d 624.