Chicago, I.&L. Ry. Co. v. Priddy, No. 9072.

Docket NºNo. 9072.
Citation65 Ind.App. 552, 108 N.E. 238
Case DateMarch 25, 1915
CourtCourt of Appeals of Indiana

65 Ind.App. 552
108 N.E. 238

CHICAGO, I. & L. RY. CO. et al.
v.
PRIDDY et al.

No. 9072.

Appellate Court of Indiana, Division No. 1.

March 25, 1915.


Appeal from Circuit Court, Huntington County; David E. Smith, Special Judge.

Action by John L. Priddy and others against the Chicago, Indianapolis & Louisville Railway Company, the Wabash Railroad Company, and the Louisville & Nashville Railroad Company. Judgment for defendants, and plaintiffs appeal. Appeal of Wabash Railroad Company dismissed.


Stuart, Hammond & Simms, of La Fayette, Watkins & Butler, of Huntington, and E. C. Field, H. R. Kurrie, and C. C. Hine, all of Chicago, Ill., for appellants. Eichhorn & Vaughn, of Bluffton, and Lesh & Lesh, of Huntington, for appellees.

HOTTEL, C. J.

On January 22, 1915, appellees appeared specially in this cause and moved to dismiss the appeal as to the Wabash Railroad Company. The motion to dismiss contains seven grounds, presenting in different form the question of the jurisdiction of the court over appellees as to any matter presented by the appeal between appellees and the said appellant Wabash Railroad Company, because of the failure of such appellant to perfect its appeal in either of the methods prescribed by statute.

The facts on which this motion is based, as disclosed both by the motion and the record, are substantially as follows: The finding below was in favor of the appellees against the Chicago, Indianapolis & Louisville Railway Company and Wabash Railroad Company, and against appellees as to the Louisville & Nashville Railroad Company. The motion to dismiss the appeal is against the Wabash Railroad Company alone. For the purposes of its consideration, the Chicago, Indianapolis & Louisville Railway Company and the Wabash Railroad Company alone will be treated and referred

[108 N.E. 239]

to as the appellants, and when the word “appellant” is used herein in the singular it will refer to the Wabash Railroad Company, unless otherwise designated. On June 17, 1914, after such trial and finding by the court below, the appellants each filed a separate motion for new trial, and they also filed a joint motion for new trial. On the same day each of these motions was overruled, and judgment rendered in favor of appellees against appellants. From this judgment the appellant Chicago, Indianapolis & Louisville Railway Company prayed an appeal. The usual order granting the appeal was made, in which time for filing bill of exceptions and the amount of the bond was fixed, and the sureties named and approved, all in accord with the statute providing for a term time appeal. On July 14, 1914, and within the time given by the court, the Chicago, Indianapolis & Louisville Railway Company filed its appeal bond. This bond is set out in the record, and in all respects complies with the court's order, except that it is the bond of such company alone, and by its terms neither the principal nor sureties therein are held and bound to the payment of any judgment except that which may be rendered against such Chicago, Indianapolis & Louisville Railway Company. On September 11, 1914, a transcript of the record in said cause was filed in this court, in which both of said judgment defendants below are named as appellants, and each of such appellants separately assign error thereon.

After the filing of the transcript, and prior to the filing of appellees' motion to dismiss the appeal, no notice of any kind was served on either of appellees or their attorneys, or on the clerk of the court below, and appellant made no request of any kind on the clerk of this court for a notice of any kind to appellees, or either of them, or their attorneys, and no notice of any kind was in fact issued by such clerk. Appellant took no steps of any kind to serve notice of its appeal on appellees or their attorneys, or to perfect its appeal in either of the modes prescribed by statute other than herein indicated, and appellees, prior to their special appearance to dismiss the appeal, have never entered any appearance to such appeal.

[1] It will be seen from this statement of the record that appellant failed to perfect a term time appeal, that after the filing of the transcript herein it allowed 90 days to go by without taking any steps of any kind to serve any notice of its appeal on appellees,...

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7 practice notes
  • Guthrie v. Blakely, No. 18705
    • United States
    • Indiana Court of Appeals of Indiana
    • January 19, 1956
    ...52, 182 N.E. 462; Bingham v. Newtown Bank, 1916, 63 Ind. Page 359 App. 606, 114 N.E. 97; Chicago, I. & L. R. Co. v. Priddy, 1917, 65 Ind.App. 552, 108 N.E. 238, 115 N.E. 266; Rook v. Straus Bros. Co., 1906, 60 Ind.App. 381, 110 N.E. 1006; Rooker v. John Hancock Mut. Life Ins. Co., 1933,......
  • Chicago v. Priddy, No. 9072.
    • United States
    • Indiana Court of Appeals of Indiana
    • February 23, 1917
    ...for a new trial, they appeal. A motion to dismiss appeal of the defendant Wabash Railroad Company having been heretofore sustained (108 N. E. 238), the appeal came on for hearing on the merits as to the named defendant. Judgment affirmed. [115 N.E. 267] See, also, Wabash R. Co. v. Priddy, 1......
  • Tourkow v. Hoover, No. 18345
    • United States
    • Indiana Court of Appeals of Indiana
    • October 15, 1952
    ...held to constitute an excuse that the mistake must be one of fact and not of law. Chicago, etc. R. Co. v. Priddy, 1917, 65 Ind.App. 552, 108 N.E. 238, 115 N.E. 266. In the case before us appellant's 'miscalculation' was due either to a mistake of the law or to negligence on his The law is w......
  • McGuire v. Review Bd. of Ind. Employment Sec. Division, No. 18212
    • United States
    • Indiana Court of Appeals of Indiana
    • June 7, 1951
    ...mistake for which relief may be granted must be one of fact, and not, as here, one of law. Chicago, I. & L. R. Co. v. Priddy, 1917, 65 Ind.App. 552, 108 N.E. 238, 115 N.E. The motion to dismiss the appeal is sustained. Appeal dismissed. ...
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7 cases
  • Guthrie v. Blakely, No. 18705
    • United States
    • Indiana Court of Appeals of Indiana
    • January 19, 1956
    ...52, 182 N.E. 462; Bingham v. Newtown Bank, 1916, 63 Ind. Page 359 App. 606, 114 N.E. 97; Chicago, I. & L. R. Co. v. Priddy, 1917, 65 Ind.App. 552, 108 N.E. 238, 115 N.E. 266; Rook v. Straus Bros. Co., 1906, 60 Ind.App. 381, 110 N.E. 1006; Rooker v. John Hancock Mut. Life Ins. Co., 1933,......
  • Chicago v. Priddy, No. 9072.
    • United States
    • Indiana Court of Appeals of Indiana
    • February 23, 1917
    ...for a new trial, they appeal. A motion to dismiss appeal of the defendant Wabash Railroad Company having been heretofore sustained (108 N. E. 238), the appeal came on for hearing on the merits as to the named defendant. Judgment affirmed. [115 N.E. 267] See, also, Wabash R. Co. v. Priddy, 1......
  • Tourkow v. Hoover, No. 18345
    • United States
    • Indiana Court of Appeals of Indiana
    • October 15, 1952
    ...held to constitute an excuse that the mistake must be one of fact and not of law. Chicago, etc. R. Co. v. Priddy, 1917, 65 Ind.App. 552, 108 N.E. 238, 115 N.E. 266. In the case before us appellant's 'miscalculation' was due either to a mistake of the law or to negligence on his The law is w......
  • McGuire v. Review Bd. of Ind. Employment Sec. Division, No. 18212
    • United States
    • Indiana Court of Appeals of Indiana
    • June 7, 1951
    ...mistake for which relief may be granted must be one of fact, and not, as here, one of law. Chicago, I. & L. R. Co. v. Priddy, 1917, 65 Ind.App. 552, 108 N.E. 238, 115 N.E. The motion to dismiss the appeal is sustained. Appeal dismissed. ...
  • Request a trial to view additional results

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