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Rule 360. Appeal by Writ of Error to Court of Appeals (1984)

TEXT

A party may appeal a final judgment to the Court of Appeals by petition for writ of error by complying with the requirements set forth below:

1. Filing Petition. The party desiring to sue out a writ of error shall file with the clerk of the court in which the judgment was rendered a written petition signed by him or by his attorney, and addressed to the clerk.

2. No Participating Party at Trial. No party who participates either in person or by his attorney in the actual trial of the case in the trial court shall be entitled to review by the Court of Appeals through means of writ of error.

3. Requisites of Petition. The petition shall state the names and residences of the parties adversely interested, shall describe the judgment with sufficient certainty to identify it, and shall state that he desires to remove the same to the Court of Appeals for revision and correction.

4. Time for Filing. The writ of error, in cases where the same is allowed, may be sued out at any time within six months after the final judgment is signed.

5. Cost Bond or Substitute. At the time of filing the petition, or within the six months provided by section 4, the appellant shall file with the clerk an appeal bond, cash deposit in lieu of bond, affidavit of inability to pay costs, or a notice of appeal if no bond is required, as provided by these rules for appeals.

6. Notice. When the petition for writ of error and cost bond, or the clerk's certificate showing cash deposit in lieu of bond, or affidavit of inability to pay costs, or the notice of appeal, if permitted, is filed; the clerk shall notify the parties by mailing a copy of the petition and bond, or the substitute for the bond to all parties to the judgment other than the party or parties filing the petition for writ of error. The failure of the clerk to notify the parties shall not affect the validity of the appeal.

7. Recipients and Sufficiency of Notice. The notification of a party shall be given by mailing copies of the instruments to the attorney of record or, if the party is not represented by an attorney, then to the party at his last known address. Such notification is sufficient notwithstanding the death of the party or his attorney prior to the giving of the notification. The clerk shall note on the file docket the names of the parties to whom he mails the copies, with the date of mailing.

8. Perfection. The writ of error is perfected when the petition and bond or cash deposit in lieu of bond Of affidavit of inability to pay is filed or a contest is overruled, or a notice of appeal, if permitted, is filed.

Amended by order of Dec. 5, 1983, eff. April 1, 1984: The rule consolidates several rules and statutes. Paragraph 1 is from former Rule 359. Paragraph 2 comes from article 2249a verbatim, except it deletes "Civil." Paragraph 3 comes from former Rule 360, except it deletes "Civil" Paragraph 4 comes from article 2255. Paragraph 5 comes from former Rule 361 with words added to cover other methods to perfect an appeal. It also conforms the language to the holding that simultaneous filing of the petition and bond are not required so long as both are filed within six months. Paragraph 6 comes from the first sentence of Rule 362, but it is broken into two sentences. Paragraph 7 comes from the last two sentences of present Rule 362. Paragraph 8 comes from Rule 363, shortened and modernized.