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Rucker v. Barnes5/13/2005
ng the case had a notation of service date of February 10, 2003. Rucker's notice of appeal was not received and filed by the circuit court clerk until March 19, 2003, some thirty-seven days later. As the notice of appeal therefore was filed seven days late, this court has no choice but to dismiss the appeal as untimely. CR 73.02(2).
Rucker argues that a different result is compelled because the running of time for filing a notice of appeal should be calculated from the February 21 entry of the amended order correcting a typographical error in the February 10 order. CR 60.01 allows a court to correct a clerical mistake at any time, either by motion of a party or on the court's own motion.
However, application of the rule is limited to clerical errors, and a motion to correct a clerical mistake "does not lead to relief from the underlying judgment...." Thus " he time for appeal from the underlying judgment correspondingly dates from the original rendition of judgment . . ." and not from the entry of an amended judgment. Thus, as stated in Maslow Cooperage Corporation v. Jones, the February 21 order correcting a typographical error in the February 10 order "could not operate to revitalize the judgment in such a way as to start anew the running of the period for taking an appeal."
For the foregoing reasons, this appeal is ordered DISMISSED as having been untimely filed. CR 73.02(2).
ALL CONCUR.
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