Brd. Of Public Safety Of Muncie v. Wallinget
| Decision Date | 03 November 1933 |
| Docket Number | 26,215 |
| Citation | 206 Ind. 540 |
| Parties | Board Of Public Safety Of The City Of Muncie Et Al. v. Walling Et Al. |
| Court | Indiana Supreme Court |
[Rehearing denied March 16, 1934.]
1. APPEAL---Proceedings for Transfer---Term Appeal---Bond.---Filing of an appeal bond is essential to a term time appeal. p. 542.
2. APPEAL---Proceedings for Transfer---Term Appeal---Requisites.---To perfect term time appeal it is necessary that an appeal be prayed at the same term judgment is rendered; that an appeal bond be filed at the term or that the penalty be fixed, sureties approved, time given in which to file the bond, and bond filed within the time given; and that the transcript be filed in the office of the Clerk of the Supreme Court within 60 days after filing the bond, or within the time extended. p. 542.
3. APPEAL---Proceedings to Transfer---Term Appeal---Stay of Proceedings.---A term appeal, properly taken, will effectuate a stay of proceedings, but no stay will result if the bond is not filed within the time given or if the transcript is not filed within 60 days after filing the bond or within the time as extended. p. 542.
4. APPEAL---Proceedings for Transfer---Term Appeal---Notice.---Where term time appeal is properly taken no notice to appellees is required. p. 542.
5. APPEAL---Proceedings for Transfer---Term, Appeal---By Cities and Towns.---Term time appeal by a city or town or its official representatives must be prayed and granted during term at which judgment is rendered, but, no bond being required, general statutory provisions for fixing penalty of bond, approving sureties, and fixing time to file bond are not applicable and transcript may be filed without notice at any time allowed for perfecting general vacation appeals. p 544.
6. STATUTES---Title---Matters Connected with Subject Matter.---Provisions of statute, under title referring to bonds in appeals and other proceedings involving municipal corporations, relating to stay of execution time for perfecting appeals, and dispensing with notice, held properly connected with subject expressed in the title. p. 545.
7. STATUTES---Title---Matters Connected with Subject Matter.---The title to an act must express the subject, but need not include matters properly connected therewith. p 545.
8. STATUTES---Title---Scope of Subject Matter.---Title, "An act relating to bonds in appeals, etc.," held to cover provisions authorizing appeals without bond. p. 545.
9. APPEAL---Proceedings for Transfer---Term Appeal---Municipal Corporations---Record as to Bond.---Statute authorizing cities and towns or their official representatives to appeal without bond does not require the record to show that the appeal was prayed or granted without bond, since the appeal without bond is mandatory and not discretionary with the court. p. 546.
10. APPEAL---Proceedings for Transfer---Term, Appeal---Municipal Corporations---Statute.---Acts 1931, ch. 9, does not create a new term time appeal but merely makes certain changes in the provisions respecting appeals applicable to cities and towns or their official representatives. p. 546.
11. MANDAMUS---Parties---State Necessary Party.---Actions in mandate must be brought in the name of the state on the relation of the party in interest, and, cannot be prosecuted by one in his individual or personal capacity. p. 546.
12. APPEAL---Parties---Relators in Mandamus Proceeding.---Respondent's appeal from a judgment in mandamus proceedings must be dismissed where the assignment of errors named the relators in their individual capacity as parties appellee and failed to include the state as a party p. 546.
Action in mandate by the State of Indiana on the relation of Loren A. Walling, and others against The Board of Public Safety of the City of Muncie and others to compel reinstatement of relators as city foremen. From a judgment for relators respondents appealed. Appeal dismissed.
C. A. Taughinbaugh and O. S. Boling, for appellants. Richard L. Ewbank and George H. Koons, for appellees.
TREANOR, J. ---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, Indiana, 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 payroll 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.
1--4. 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 interm 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 can not be effected under 698, Burns Ann. Ind. St. 1926, 2--3204, Burns Ind. Stat. Ann. 1933, 480, Baldwin's Ann. Ind. Stat. 1934, 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:
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