Bechtell v. Central Station Engineering Company
| Decision Date | 17 December 1914 |
| Docket Number | 22,415 |
| Citation | 107 N.E. 73,182 Ind. 568 |
| Parties | Bechtell v. The Central Station Engineering Company et al |
| Court | Indiana Supreme Court |
From Hendricks Circuit Court; James L. Clark, Judge.
Action by Fred M. Bechtell against The Central Station Engineering Company and others. From a judgment against him in favor of Shelby, Shelby and Norwood, plaintiff appeals; and from a judgment against The Central Station Engineering Company and others, they appeal. The original title of this appeal is Fred M. Bechtell v. The Central Station Engineering Company et al., and The Central Station Engineering Company et al. v. Fred M. Bechtell, No. 22,415, but for convenience in reporting and citing the case it is herein entitled Bechtell v. The Central Station Engineering Company et al.
Appeal dismissed.
George C. Harvey, Samuel R. Artman and William H. Smith for appellant Bechtell.
Harry C. Sheridan and Earl F. Grube, for appellants The Central Station Engineering Company et al.
Ira M Sharp, for appellee Shelby, Shelby and Norwood.
This is an attempted appeal by Fred M. Bechtell from a judgment against him in favor of Shelby, Shelby and Norwood, and an appeal by The Central Station Engineering Company et al. from a judgment against them in favor of appellee Bechtell. These judgments were rendered in the Hendricks Circuit Court on July 12, 1912. On June 12, 1913, a transcript was filed in this court on which Bechtell and The Central Station Engineering Company, et al., assign errors. The first mentioned assignment questions the second conclusion of law; the second mentioned assignment of error questions the first conclusion of law. A motion to dismiss this appeal of Bechtell was made on the part of Shelby Shelby and Norwood, on the grounds that no notice was served on the clerk of the Hendricks Circuit Court, before filing the transcript in this court, or for more than ninety days thereafter. It appears from the record in this case, that appellant Bechtell served notice upon the Central Station Engineering Company, Gilham, Gifford and Wallace, and upon Shelby, Shelby and Norwood, of his intention to appeal. The appellants, The Central Station Engineering Company, Gilham Gifford and Wallace, served notice upon the other parties hereto of their intention to appeal, all of which notices were served, and acknowledgements made of same prior to the filing of the transcript in this court, but no notice was served by either party upon the clerk of the Hendricks Circuit Court, prior to the filing of the transcript in this court.
The statute authorizing vacation appeals to this court has provided the manner of giving notice in case of appeal and is as follows: "After the close of the term at which the judgment is rendered, an appeal may be taken by the service of notice in writing on the adverse party or his attorney and also on the clerk of the court in which the proceedings were had, stating the appeal from the judgment or some specific part thereof; or such appeals may be taken by procuring from the clerk of the court a transcript of the record and proceeding in the suit, or so much thereof as is embraced in the appeal, and filing the same in the office of the clerk of the Supreme Court, who shall endorse thereon the time of filing, and issue a notice of the appeal to the appellee." § 681 Burns 1914, § 640 R. S. 1881. It will be noticed that if an appeal is taken under the first clause of this statute, it is incumbent upon appellant to serve notice, not only upon appellees or their attorneys, but upon the clerk of the court from which the appeal is taken, of his intention to appeal. Antioch Baptist Church v. Morton (1913), 52 Ind.App. 546, 100 N.E. 874; Tate v. Hamlin (1895), 149 Ind. 94, 107, 41 N.E. 356, 1035. Under the second clause of this statute if a party desires to appeal,...
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