Fishback v. Public Service Commission of Indiana
| Citation | 138 N.E. 346,193 Ind. 282 |
| Decision Date | 08 March 1923 |
| Docket Number | 23,943 |
| Parties | Fishback v. Public Service Commission of Indiana et al |
| Court | Supreme Court of Indiana |
Rehearing Denied May 31, 1923, Reported at: 193 Ind. 282 at 286.
From Marion Superior Court (101,192); Solon J. Carter, Judge.
Action by Frank S. Fishback against the Public Service Commission of Indiana and others. From a judgment for defendants, the plaintiff appeals.
Appeal dismissed.
Woodburn Masson, for appellant.
Charles Remster, Henry H. Hornbrook, Albert P. Smith, Paul Y. Davis and Kurt F. Pantzer, for appellees.
The nature of this action and the character of the judgment appealed from are correctly stated in the brief for appellant, as follows:
Said order, as set out in the complaint, after reciting that certain changes were required to be and were made in the terms of the lease in question, was only that "the Commission, having examined said lease and being advised in the premises, now orders that the same be approved and spread upon the records of said Commission."
An affirmative answer having been filed by appellee to the first paragraph of complaint, appellant filed nine additional paragraphs of complaint, to each of which (after amendment), a demurrer was sustained. Appellant then filed a demurrer to said answer, which was overruled. Appellant refused to plead further, and on February 15, 1921, final judgment that appellant take nothing, and that appellees recover their costs, was rendered on the demurrers. No motions were filed by which the effect of the judgment was suspended, there was no prayer for a term appeal, and all that appellant is shown by the transcript to have done after the rendition of judgment was to file a praecipe, asking the clerk to prepare and certify a transcript of the record below.
The transcript and assignment of errors were filed in the Supreme Court on October 4, 1921, after the lapse of 231 days from the date of judgment. A motion to dismiss the appeal has been filed because it was not perfected within 180 days after judgment, in compliance with the provisions of the Practice Act. § 672 Burns 1914, Acts 1913 p. 65, § 2.
It appears that in April and June 1921, respectively, appellant filed in this court verified petitions stating that the action was to set aside an order of the Public Service Commission authorizing the two gas companies to enter into a lease, "and fixing the rate at which gas should be supplied to the citizens of said city." And, upon each petition, an order of this court was obtained extending the right to appeal, under the provision of Acts 1913 p. 167, § 83 (§ 10052e3 Burns 1914), which gives the right to appeal from an order fixing rates within 60 days, "or within such further time as the Supreme Court may grant." And in August, 1921, he obtained a further order extending to October 5, 1921, the time for filing his transcript, upon a petition showing that he had been given the other extension and that his transcript was not yet fully prepared. But § 83, supra, has no application to an appeal from the refusal of the court to enjoin action under a lease approved by the Public Service Commission. §§ 10052q3, 10052r3 Burns 1914, Acts 1913 p. 167, §§ 95, 95 1/2.
The approval of a lease of the property of one public utility...
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