Bd. of Pub. Safety of City of Muncie v. Walling, 26215.

• Court: Supreme Court of Indiana
• Citation: 206 Ind. 540,187 N.E. 385
• Docket Number: No. 26215.,26215.
• Parties: BOARD OF PUBLIC SAFETY OF CITY OF MUNCIE et al. v. WALLING et al.
• Decision Date: 03 November 1933

206 Ind. 540
187 N.E. 385

BOARD OF PUBLIC SAFETY OF CITY OF MUNCIE et al.
v.
WALLING et al.

No. 26215.

Supreme Court of Indiana.

Nov. 3, 1933.

Appeal from Superior Court, Delaware County; Robert Murray, Judge.

Action for mandate by the State, on the relation of Loren A. Walling and others, for mandate to be addressed to the Board of Public Safety of the City of Muncie and others, to compel respondents to place names of relators on the records and pay roll of fire department of such city, as officers of such department, and to enroll their names and official salaries on official salary roll. From a judgment for relators, respondents appeal. On appellees' motion to dismiss appeal.

Motion to dismiss appeal sustained.

[187 N.E. 386]

C. A. Taughinbaugh, of Muncie, and Owen S. Boling, of Indianapolis, for appellants.

George H. Koons, of Muncie, and Richard L. Ewbank, of Indianapolis, for appellees.

TREANOR, Judge.

This was an action for mandate brought in the name of the state of Indiana by the appellees herein, as relators, to compel the board of public safety of the city of Muncie, Ind., through its members, to place the names of said relators on the records and pay roll of the fire department of said city as officers of said department and to enroll their names and official salaries on the official salary pay roll as provided by law and ordinance, on the grounds that their pretended oral dismissal as such officers was without cause, invalid, unlawful, and ineffectual. On May 14, 1932, judgment was rendered granting the relief asked. The record shows that at the same time judgment was rendered an appeal was prayed and granted as follows: “And each of the defendants herein now pray an appeal to the Supreme Court of the State of Indiana, which prayer is now granted and the court grants said defendants sixty days (60) in which to file all bills of exceptions.”

On July 12, 1932, the transcript of the record was filed with the clerk of this court. On December 3, 1932, the appellees, who were relators below, filed their motion to dismiss the appeal on the grounds that (1) it was filed in the office of the clerk of the Supreme Court without notice and without bond for an in term appeal, and that no notice was given within the time allowed for perfecting an appeal; and (2) that the assignment of errors was defective, in that the state of Indiana was not named therein and the persons named as appellees were not named or referred to as relators.

In support of the first ground for dismissal, appellees contend that the instant appeal is not an in term appeal, for the reason that no appeal bond was filed or offered for filing. Both sides agree that it could not be treated as a vacation appeal, since no notice was given to appellees. Whether this appeal is an in term appeal depends upon the construction of chapter 9, p. 14, of the Acts of 1931, and upon the further question of its constitutionality. It is clear that an in term appeal cannot be effected under section 698, Burns' Ann. Ind. St. 1926, Acts 1881, Sp. Session, p. 240, ch. 38, § 632, without the filing of an appeal bond.¹ Chapter 9 of the Acts of 1931, including the title to the act, reads as follows:

“An Act relating to bonds in appeals and other proceedings and actions, and stay of execution on judgments, where any municipal corporation, or persons representing same in any official capacity, are parties, and declaring an emergency.

“Section 1. Be it enacted by the general assembly of the State of Indiana, That in all actions in which any city, or town, or those representing it in any official capacity, are entitled to pray or take an appeal of any kind, the same shall be granted or taken as to such city, or town, or such persons, without bond. Any term appeal so granted may be perfected without further notice at any time within the...