Chicago, Indianapolis And Louisville Railway Company v. Priddy

• Decision Date: 23 February 1917
• Docket Number: 9,072
• Citation: 108 N.E. 238,65 Ind.App. 552
• Parties: CHICAGO, INDIANAPOLIS AND LOUISVILLE RAILWAY COMPANY ET AL. v. PRIDDY ET AL
• Court: Indiana Appellate Court

108 N.E. 238

65 Ind.App. 552

CHICAGO, INDIANAPOLIS AND LOUISVILLE RAILWAY COMPANY ET AL. v. PRIDDY ET AL

No. 9,072

Court of Appeals of Indiana

February 23, 1917

Rehearing denied June 22, 1917. Transfer denied November 2 1917.

From Huntington Circuit Court; David E. Smith, Special Judge.

Action by John L. Priddy and others against the Chicago Indianapolis and Louisville Railway Company and others. From a judgment for plaintiffs the defendants, except the Louisville and Nashville Railroad Company, appeal. Appeal of Wabash Railroad Company dismissed.

Affirmed.

Stuart, Hammond & Simms, Watkins & Butler, E. C. Field, H. R. Kurrie, C. C. Hine and Perry McCart, for appellants.

E. C. Vaughn and Lesh & Lesh, for appellees.

HOTTEL C. J. HOTTEL, C. J.

OPINION

HOTTEL, C. J.

On January 22, 1915, appellees appeared specially in this cause and moved to dismiss the appeal as to the Wabash Railroad Company. The motion to dismiss contains seven grounds presenting in different form the question of the jurisdiction of the court over appellees as to any matter presented by the appeal between appellees and the said appellant Wabash Railroad Company, because of the failure of such appellant to perfect its appeal in either of the methods prescribed by statute.

The facts on which the motion is based, as disclosed both by the motion and the record, are substantially as follows: The finding below was in favor of the appellees against the Chicago, Indianapolis and Louisville Railway Company and Wabash Railroad Company, and against appellees as to the Louisville and Nashville Railroad Company. The motion to dismiss the appeal is against the Wabash Railroad Company alone, and for the purposes of its consideration, the Chicago, Indianapolis and Louisville Railway Company and the Wabash Railroad Company alone will be treated and referred to as the appellants, and when the word "appellant" is used herein in the singular it will refer to the Wabash Railroad Company, unless otherwise designated. On June 17, 1914, after such trial and finding by the court below, the appellants each filed a separate motion for new trial, and they also filed a joint motion for new trial. On the same day each of these motions was overruled and judgment rendered in favor of appellees against appellants. From this judgment the appellant Chicago, Indianapolis and Louisville Railway Company prayed an appeal. The usual order granting the appeal was made, in which time for filing bill of exceptions and the amount of the bond were fixed, and the sureties named and approved all in accord with the statute providing for a term-time appeal. On July 14, 1914, and within the time given by the court, the Chicago, Indianapolis and Louisville Railway Company filed its appeal bond. This bond is set out in the record, and in all respects complies with the court's order, except that it is the bond of such company alone, and by its terms neither the principal nor sureties therein are held and bound to the payment of any judgment except that which may be rendered against such Chicago, Indianapolis and Louisville Railway Company. On September 11, 1914, a transcript of the record in said cause was filed in this court, in which both of said judgment defendants below are named as appellants, and each of such appellants separately assign error thereon. After the filing of the transcript, and prior to the filing of appellees' motion to dismiss the appeal, no notice of any kind was served on either of appellees or their attorneys, or on the clerk of the court below, and appellant made no request of any kind on the clerk of this court for a notice of any kind to appellees or either of them or to their attorneys, and no notice of any kind was in fact issued by such clerk. Appellant took no steps of any kind to serve notice of its appeal on appellees or their attorneys, or to perfect its appeal in either of the modes prescribed by statute other than herein indicated, and appellees prior to their special appearance to dismiss the appeal have never entered any appearance to such appeal.

It will be seen from this statement of the record that appellant failed to perfect a term-time appeal, that, after the filing of the transcript herein, it allowed ninety days to go by without taking any steps of any kind to serve any notice of its appeal on appellees, and that 180 days intervened between the rendition of the judgment below, and the filing of appellees' motion to dismiss the appeal. Appellant, in effect, concedes that under a strict construction of Rule 36 of this court and under the authority of the case of Cincinnati, etc., R. Co. v. Acrea (1906), 40 Ind.App. 150, 81 N.E. 213, its appeal must be dismissed.

It is insisted, however, in effect that the enforcement of Rule 36 is, in a measure, discretionary with the court, and that the ends of justice are not met by its rigid enforcement, where the failure of its observance is due to accident, mistake, or oversight of the appealing party or his attorneys. In support of this contention appellant cites Smythe v. Boswell (1888), 117 Ind. 365, 20 N.E. 263; Tate v. Hamlin (1897), 149 Ind. 94, 41 N.E. 356, 1035; Hanley v. Mason (1907), 40 Ind.App. 180, 81 N.E. 610; Bank of Westfield v. Inman (1892), 133 Ind. 287, 32 N.E. 885; Hutts v. Martin (1892), 131 Ind. 1, 30 N.E. 698, 31 Am. St. 412; Ewbank's Manual (2d ed.) § 160. These cases do not support appellant's contention. On the contrary, they each, either expressly or impliedly, hold that the mistake which will relieve an appellant from the enforcement of Rule 36, supra, must be one of fact, and that the oversight or neglect which will afford such relief must be shown to have been excusable. Any other holding would nullify the rule.

No excuse for appellant's failure to observe such rule appears from the record, or is offered in this case, which would not appear from the record in any case where a term-time appeal had been perfected by one of several coparties against whom a judgment had been rendered in the court below, and another coparty who had not perfected such an appeal assigned error on the transcript filed in this court.

The court rules have the force and effect of law, and the duty to observe and follow them rests on litigants and courts alike, where no valid reason can be given for their nonobservance. Webster v. Bligh (1911), 50 Ind.App. 56, 58, 98 N.E. 73; Magnuson v. Billings (1898), 152 Ind. 177, 52 N.E. 803.

In the case of Cole v. Franks (1896), 147 Ind. 281, 46 N.E. 532, the Supreme Court, in speaking of the enforcement of Rule 36, supra, said: "This rule would seem to govern in the case before us. A cause was appealed in vacation, and was placed on the docket June 19, 1896. Not until long after ninety days from this date, and not until steps were taken by appellees to have the appeal dismissed, did appellants take any steps to bring the appellees into court. It was then too late to give notice; and though the clerk did not enter an order of dismissal when the cause had been on the docket ninety days, yet the court will make such order so soon as its attention is called to the failure of appellants to give timely notice of the appeal." To the same effect, see Smith v. Wells Mfg. Co. (1896), 144 Ind. 266, 43 N.E. 131; Shaefer v. Nelson (1896), 17 Ind.App. 489, 491, 46 N.E. 1021; Court of Honor v. Bankert (1903), 31 Ind.App. 689, 690, 691, 68 N.E. 1039; Ashley v. Henderson (1903), 32 Ind.App. 242, 243, 69 N.E. 469; Moore v. Bankers Surety Co. (1904), 34 Ind.App. 633, 635, 73 N.E. 607; John V. Farwell Co. v. Newman (1897), 17 Ind.App. 649, 659, 47 N.E. 234; Doak v. Root, etc., Co. (1900), 26 Ind.App. 138, 141, 142, 58 N.E. 444; Bechtell v. Central, etc., Engineering Co. (1914), 182 Ind. 568, 107 N.E. 73; W. C. Hall Milling Co. v. Hewes (1914), 57 Ind.App. 381, 105 N.E. 241; Fort v. White (1914), 58 Ind.App. 524, 108 N.E. 27; Tate v. Hamlin, supra; Cincinnati, etc., R. Co. v. Acrea, supra.

However, appellant's failure to comply with rule 36 is not the only ground on which appellees predicate their right to have the appeal dismissed as to appellant. They insist that appellant has not perfected its appeal in either of the methods provided by statute, and that 180 days have expired since the judgment was rendered below, and hence that the time within which the law requires an appeal to be taken has expired.

As affecting this question appellant insists that his appeal was perfected when the transcript and assignment of errors were filed in this court. On the question of when a vacation appeal is perfected there is some confusion in the authorities, as will be evidenced by the following cases. Tate v. Hamlin, supra; John V. Farwell Co. v. Newman, supra, 648; Hanley v. Mason, supra; Bank of Westfield v. Inman, supra; Niemitz v. State, ex rel. (1906), 38 Ind.App. 509, 510, 78 N.E. 357; Harshman v. Armstrong (1873), 43 Ind. 126, 128, 129; Dougherty v. Brown (1898), 21 Ind.App. 115, 118, 51 N.E. 729; Smythe v. Boswell, supra; Bruiletts Creek Coal Co. v. Pomatto (1909), 172 Ind. 288, 88 N.E. 606; Hoeger v. Citizens' Street R. Co. (1904), 35 Ind.App. 289, 73 N.E. 1095; Coburn v. Whitaker, etc., Lumber Co. (1894), 12 Ind.App. 340, 341, 38 N.E. 1094; Holloran v. Midland R. Co. (1891), 129 Ind. 274, 275, 276, 28 N.E. 549; Helms v. Cook (1914), 58 Ind.App. 259, 108 N.E. 147.

Whether a vacation appeal is perfected when the transcript and assignment of errors are filed in this court is not of controlling importance in the instant case, because it is conceded in effect by appellant that it took none of the steps necessary to perfect a vacation appeal; that all it did was to assign error on a transcript filed by a coparty who perfected a term-time appeal, and that its appeal is controlled...