Barney v. Elkhart County Trust Company

• Decision Date: 18 December 1906
• Docket Number: 20,921
• Citation: 79 N.E. 492,167 Ind. 505
• Parties: Barney et al. v. Elkhart County Trust Company, Receiver
• Court: Indiana Supreme Court

79 N.E. 492

167 Ind. 505

Barney et al. v. Elkhart County Trust Company, Receiver

No. 20,921

Supreme Court of Indiana

December 18, 1906

From Elkhart Circuit Court; James S. Dodge, Judge.

Suit by the Elkhart County Trust Company, as receiver of the American Mutual Life Insurance Company of Elkhart, Indiana, against William M. Barney and others.From a decree granting a temporary injunction, defendants appeal.

Appeal dismissed.

Van Fleet & Van Fleet, for appellants.

Lou W Vail and James S. Dodge, Jr., for appellee.

OPINION

Monks, J.

This is an appeal from an interlocutory order made in term, granting an injunction against appellants.

Appellee has filed a motion to dismiss the appeal on the ground that the same was not perfected at the term of court at which the order appealed from was made.This motion must be sustained.

The rule is that no appeal can be taken from an interlocutory order unless there is a statute expressly providing therefor and that such statute must be strictly construed.Natcher v. Natcher(1899), 153 Ind. 368 369, 55 N.E. 86, and authorities cited.Appeals in such cases"must be taken as the statute especially applicable to such cases provides."Elliott, App. Proc., §§ 100-109.

This appeal therefore is not governed by §§ 644,645,650,652-654Burns 1901, §§ 632, 633, 638, 640-642 R. S. 1881 and Horner 1901, and other sections providing for and regulating appeals from final judgments but by § 658 Burns 1905, Acts 1905, p. 490, and§§ 659,660Burns 1901, §§ 647, 648 R. S. 1881 and Horner 1901, which provide for and regulate appeals from certain interlocutory orders.Section 658, supra, provides that appeals may be taken from certain interlocutory orders, among which are orders "granting * * * an injunction in term, and granting an injunction in vacation."Section 659, supra, provides that "such appeals may be taken at the term of the court at which the order is made; or, when made in vacation, the appeal may be taken at the time or during the next term.The appeal shall not be granted until the appellant has filed an appeal bond, as in other cases of appeal."Section 660, supra, provides that "such appeal shall not stay proceedings upon the order more than thirty days, unless the Supreme Court in term, or some judge thereof in term or vacation, shall otherwise order."

It has been uniformly held by this court that when a statute provides that an "appeal may be taken" within a time fixed thereby, the appeal must be perfected within that time; that is, "an appeal is taken" only when all the acts necessary to give the appellate court jurisdiction of the appeal have been performed, all of which must be done within the time fixed by the statute for taking the appeal.Elliott, App. Proc., §§ 100, 107, 109, 128;Bank of Westfield v. Inman(1892), 133 Ind. 287, 288, 32 N.E. 885;Joyce v. Dickey(1885), 104 Ind. 183, 3 N.E. 252;Vance v. Schayer(1881), 76 Ind. 194;Hursh v. Hursh(1885), 99 Ind. 500.

Section 1245 Burns 1901, § 1231 R. S. 1881 and Horner 1901 makes provision in the following language for appeals from interlocutory orders appointing receivers: "In all cases hereafter commenced or now pending in any of the courts of this State, in which a receiver may be appointed or refused, the party aggrieved may, within ten days thereafter, appeal from the decision of the court to the Supreme Court, * * * upon the appellant['s] filing an appeal bond with sufficient security," etc.In Vance v. Schayer, supra,this court held that unless the appeal under said statute was perfected by filing a transcript in this court within ten days after the order appointing or refusing to appoint the receiver was made, the appeal would be dismissed on the...