Barnes v. Wagener

• Decision Date: 17 December 1907
• Docket Number: No. 21,126.,21,126.
• Citation: 82 N.E. 1037,169 Ind. 511
• Parties: BARNES et al. v. WAGENER.
• Court: Indiana Supreme Court

169 Ind. 511

82 N.E. 1037

BARNES et al.

v.WAGENER.

No. 21,126.

Supreme Court of Indiana.

Dec. 17, 1907.

Appeal from Circuit Court, St. Joseph County; W. A. Funk, Judge.

Application by Michael Wagener for a license to sell intoxicating liquors, to which Thomas C. Barnes and others filed a remonstrance. The remonstrance was rejected, and a license granted, and an appeal taken. From a judgment of the circuit court on appeal sustaining a demurrer to the remonstrance, remonstrators appeal. Appeal dismissed.

Charles F. Holler, for appellants. Hoban & Steis, for appellee.

JORDAN, J.

Appellee has moved to dismiss this appeal upon the ground that no such final judgment was rendered by the lower court from which an appeal will lie to the Supreme Court. The facts in the case, so far as they are pertinent to the consideration of the question presented by the motion to dismiss, appear to be as follows: Appellee applied to the board of commissioners of St. Joseph county, at the May session thereof, 1907, for a license to be granted to him to sell intoxicating liquors in a certain ward in the city of South Bend. This application was made under the laws of this state which authorize the granting of a license by the board of commissioners to retail intoxicating liquors. See section 7278, Burns' Ann. St. 1901, et seq. Appellants filed before the board of commissioners at said session what is denominated a “remonstrance” against the granting of a license to appellee. By this remonstrance they sought to present substantially the same questions as were raised and decided by this court in Sopher v. State, 81 N. E. 913, in respect to the invalidity of the laws of this state which regulate and restrict the traffic at retail of intoxicating liquors. Appellee filed a motion requesting the board of commissioners to strike out and reject the remonstrance on the ground that it did not state any cause of remonstrance under the laws of this state. This motion, over the exceptions of the remonstrators, the board sustained, and thereafter proceeded to hear evidence in support of appellee's application, and thereupon granted him a license to retail intoxicating liquors upon the premises described in his petition. From this order of the board said remonstrators appealed to the St. Joseph circuit court. In the latter court, appellee renewed his objections to the remonstrance, by what is termed a “demurrer,” alleging therein that it did not state facts sufficient to constitute a cause of remonstrance. This demurrer was sustained by the court, to which ruling the remonstrators separately and severally excepted. The record then recites that “thereupon the remonstrators failed and refused to plead further, and the court renders judgment on the demurrer.” This judgment is as follows: “It is therefore considered and adjudged by the court that the remonstrants take nothing by this action, and that defendant recover from the remonstrators his costs and charges in this case laid out and expended, taxed at $-, to which the remonstrators, at the time, excepted, and 90 days' time is given the remonstrators in which to prepare and file their bill of exceptions herein. Thereupon the remonstrators pray an appeal to the Supreme Court of the state of Indiana, which is granted upon their filing an appeal bond in the sum of $200 with the clerk of this court, within 30 days from this date, with Frank P. Fields, as surety thereon, which surety is hereby approved by the court.” This appeal bond was filed and approved, and a certified transcript was filed in the office of the clerk of this court on September 25, 1907.

The errors assigned relate to the ruling of the court in sustaining the demurrer to the remonstrance. As to whether there was any final judgment whatever in the lower court disposing of the issue raised by appellee's application, either by granting or denying him a license to retail intoxicating liquors, is not disclosed by the record in this case. As the authorities affirm, the record on appeal must show a final judgment, or the appeal will be dismissed. Elliott's App. Procedure, § 96, and cases cited. Appeals to this court can only be taken as authorized by statute, and then only, with some exceptions, from a final judgment, as provided by section 644, Burns' Ann. St. 1901. Thornton's Civ. Code, § 437. Exceptions to this general provision will be found in the statute permitting appeals to be taken to the Supreme Court from certain enumerated interlocutory orders, as provided by subdivision 15 of section 9 of an act concerning appeals, etc., as said section was amended by the Legislature of 1907. See Acts 1907, pp. 237, 238, c. 148. This appeal, however, does not come within any of the exceptions provided by this statute. It has been repeatedly held that a final judgment, within the meaning of section 644, supra, is one which makes a final disposition of the main case so far as there is power in the trial court to decide upon the questions presented by the issues therein. Thomas, Adm'r, v. Chicago, etc., R. Co., 139 Ind. 462, 39 N. E. 44, and cases there cited; Hollingsworth v. Hollingsworth, 29 Ind. App. 556, 64 N. E. 900, and cases there cited; Mak-Saw-Ba Club v. Coffin (Ind. Sup.) 82 N. E. 461. See Elliott's App. Procedure, §§ 81, 82. The general rule is that a judgment in a case is not final, within the meaning of section 644, supra, unless it disposes of all of the issues as to all of the parties in the case. If there remain issues therein undetermined, or if the rights of one or more of the parties in the case are left undecided, there is, generally speaking, no such final judgment as will warrant an appeal. Or, in other words, the case must be disposed of in all of its parts so far as it is, under the issues therein, before the court. Otherwise it will not be regarded as one in which an appeal will lie to this court. Elliott's App. Procedure, §§ 80, 81, 82, 83, 84, 90, 91. Judge Elliott, in section 84, supra,...