Chicago, Lake Shore & South Bend Railway Company v. Sanders

• Decision Date: 31 January 1917
• Docket Number: 9,693
• Citation: 114 N.E. 986,63 Ind.App. 586
• Parties: CHICAGO, LAKE SHORE AND SOUTH BEND RAILWAY COMPANY v. SANDERS
• Court: Indiana Appellate Court

114 N.E. 986

63 Ind.App. 586

CHICAGO, LAKE SHORE AND SOUTH BEND RAILWAY COMPANY v. SANDERS

No. 9,693

Court of Appeals of Indiana

January 31, 1917

From Porter Circuit Court; H. H. Loring, Judge.

Action by Wilfred H. Sanders against The Chicago, Lake Shore and South Bend Railway Company. From a judgment for plaintiff the defendant appeals, and plaintiff moves to dismiss the appeal.

Appeal dismissed.

F. J Lewis Meyer and B. F. Parks, for appellant.

George E. Hershman, for appellee.

OPINION

FELT, C. J.

Appellee by his attorney has entered a special appearance and moved to dismiss this appeal for the alleged reason that the court has not acquired jurisdiction over him.

In his motion it is alleged that appellant did not serve appellee or his attorney with notice of the appeal as provided by § 681 Burns 1914, § 640 R. S. 1881; that the only information of the proposed appeal obtained by him prior to the filing of the transcript on July 21, 1916, was from a registered letter which appellant's attorney sent to George E. Hershman, appellee's attorney, containing a "purported notice of appeal"; that said letter came to Crown Point, Indiana, the home of said Hershman, on July 19, 1916, when he was absent from the town, and was taken from the post office by his stenographer, who signed the usual receipt for a registered letter. The motion to dismiss contains a copy of the letter and of the notice of appeal enclosed with the letter. It is not contended that the notice is insufficient in form or substance, but that it was not served as contemplated by the statute and is insufficient to give the court jurisdiction over appellee or to authorize a consideration of the appeal on its merits.

Appellant contends that appellee has not complied with the rules of the court in presenting his briefs on the motion, and that inasmuch as it appears that appellee's attorney actually obtained possession of the notice of appeal in due time, the manner of the service is immaterial and the notice is sufficient.

On December 30, 1916, appellant was duly served with notice that on January 16, 1917, appellee would file a motion to dismiss this appeal and was furnished a copy of the motion. Appellee's motion and briefs thereon were filed on January 15, 1917. Rule No. 7 requires ten days' notice unless otherwise provided, and Rule No. 14 provides that: "Motions, except such general motions as are made in court upon the call of the docket, shall be filed with the clerk, accompanied by such affidavits and briefs as are necessary to support them." Appellee has substantially complied with the rules and the question of the sufficiency of the service of the notice of appeal is duly presented for our determination.

Section 681 Burns 1914, supra, provides that: "An appeal may be taken by the service of a notice in writing on the adverse party or his attorney, and also on the clerk of the court." Section 504 Burns 1914, § 481 R. S 1881, provides that proof of the service of any notice required to be served upon any party, when made by a person other than the sheriff, shall be by affidavit, or by the written admission of the party served, and requires such proof to show the time and place of service.

These statutes contemplate that the person, making the service of notice, whether an official or a nonofficial, shall be in a position to definitely inform the court, either by official certificate or by affidavit, that the party was actually served with notice, in...