Cent. Union Tel. Co. v. State ex rel. Bd. of Com'rs of Tippecanoe Co.

• Decision Date: 12 March 1887
• Parties: Central Union Telephone Co. and others v. State ex rel. Board of Com'rs of Tippecanoe Co.
• Court: Indiana Supreme Court

110 Ind. 203

10 N.E. 922

Central Union Telephone Co. and others

v. State ex rel.Board of Com'rs of Tippecanoe Co.¹

Supreme Court of Indiana.

March 12, 1887.

Appeal from circuit court, Tippecanoe county.

Williams & Thompson and McDonald, Butler & Mason, for appellants. Chase & Chase, for appellee.

ELLIOTT, C. J.

On the twenty-seventh day of January, 1885, a member of the board of commissioners of Tippecanoe county filed an affidavit, charging the appellants with having committed a contempt of the Tippecanoe circuit court by disobeying an order of injunction, and, upon a hearing, they were adjudged guilty and fined. An appeal was taken from the decree enjoining the Central Telephone Company from erecting poles in the public square in the city of La Fayette, and the acts constituting the contempt were not performed until after the appeal had been perfected. It is contended by the appellants that the appeal dissolved the injunction, and that they were not, therefore, guilty of a contempt in doing the prohibited acts. This contention cannot prevail; for the appeal did not nullify or impair the decree awarding an injunction. State v. Chase, 41 Ind. 356;Walls v. Palmer, 64 Ind. 493;Randles v. Randles, 67 Ind. 434.

The effect of a supersedeas is to restrain the appellee from taking affirmative action to enforce his decree; but it does not authorize the appellant to do what the decree prohibits him from doing. The doctrine which our decisions have long maintained is thus stated in Nill v. Comparet, 16 Ind. 107: “Indeed, the only effect of an appeal to a court of error, when perfected, is to stay execution upon the judgment from which it is taken. In all other respects the judgment, until annulled or reversed, stands binding upon the parties as to every question directly decided.” Burton v. Reeds, 20 Ind. 87;Mull v. McKnight, 67 Ind. 525;Buchanan v. Logansport, etc., Co., 71 Ind. 265;Scheible v. Slagle, 89 Ind. 323;Padgett v. State, 93 Ind. 396;State v. Krug, 94 Ind. 366. The question is so firmly settled by our own decisions that it is hardly necessary to look elsewhere; but a reference to one or two cases in other courts may not be unprofitable. In the well-considered case of Sixth Avenue, etc., Co. v. Gilbert, etc., Co., 71 N. Y. 430, the question was decided as we here decide it; the court saying, among other things, of the appeal that “it did not absolve them from the duty of obedience, and permit them to do that which the judgment absolutely prohibited, and the doing which would, as adjudged by the court, cause irreparable mischief to the plaintiff, or injury which could not certainly be compensated in damages.” Chancellor Walworth, discussing a like question, said: “The effect of an appeal, after the proper steps have been taken to render it a stay of proceedingsupon the order...