Cincinnati, Hamilton & Dayton Railway Company v. Acrea

• Decision Date: 16 May 1907
• Docket Number: 6,163
• Citation: Cincinnati, Hamilton & Dayton Railway Company v. Acrea, 81 N.E. 213, 40 Ind.App. 150 (Ind. App. 1907)
• Court: Indiana Appellate Court
• Parties: CINCINNATI, HAMILTON & DAYTON RAILWAY COMPANY ET AL. v. ACREA

81 N.E. 213

40 Ind.App. 150

CINCINNATI, HAMILTON & DAYTON RAILWAY COMPANY ET AL. v. ACREA

No. 6,163

Court of Appeals of Indiana

May 16, 1907

From Marion Circuit Court (14,357); W. W. Thornton, Judge pro tem.

Action by Katherine D. Acrea against the Cincinnati, Hamilton &amp Dayton Railway Company and another. From a judgment for plaintiff, defendants appeal. On motion to dismiss appeal as to Cincinnati, Hamilton & Dayton Railway Company.

Motion sustained.

Elam Fesler & Elam, for appellant Cincinnati, Hamilton &amp Dayton Railway Company.

Samuel O. Pickens, Owen Pickens and R. F. Davidson, for appellant Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company.

Wymond J. Beckett, for appellee.

OPINION

COMSTOCK, J.

The appellee appears specially, so far as the appellant Cincinnati, Hamilton & Dayton Railway Company is concerned, for the sole purpose of filing her motion to dismiss the appeal of said company. The motion is based upon the following grounds: (1) That the Appellate Court has no jurisdiction of the appellee; (2) that the appeal of said appellant was a vacation appeal, and the appellee has not received any legal notice of said appeal, and has not entered any appearance in this cause; (3) said appellant attempted to appeal said cause in term, but failed to file any bond within the time allowed by the court, and appellee has received no notice of said vacation appeal, as by law required; that said appeal has been on the docket of this court more than ninety days, and that the appellee has not entered any appearance to said appeal, and said appellant has not taken any steps during said time to bring appellee into this court, and no notice has been issued by the Cincinnati, Hamilton & Dayton Railway Company nor the clerk of this court which has proved ineffectual from any cause as in violation of rule thirty-six of this court. The record discloses that the appellee secured judgment against both of the appellants in the court below on March 14, 1906. On March 24, 1906, the court overruled the separate motion of each appellant for a new trial. On the same date the court overruled the motion for a new trial asked by the appellant Cincinnati, Hamilton & Dayton Railway Company, and the court allowed each of the parties sixty days in which to file bills of exceptions, and rendered judgment on the verdict for $ 6,000. On March 28, 1906, the appellants each prayed an appeal, which was granted, and the appeal bond fixed at $ 7,000, and ten days were allowed by the court for the filing of said bond. On March 31, 1906, appellant Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company submitted for the approval of the court its bond, which bond was by the court approved. Appellant Cincinnati, Hamilton & Dayton Railway Company has never at any time filed a bond. The bond filed by the appellant Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company is its separate and several bond to secure said judgment so far as it alone is concerned, but the appellant Cincinnati, Hamilton & Dayton Railway Company does not join in the bond. The transcript was filed in this court May 29, 1906. Appellant Cincinnati, Hamilton & Dayton Railway Company has at no time caused notice to be issued by the clerk of the court of said appeal, and said clerk has not issued any such notice to the appellee, and no such notice has ever been served on the appellee. The appellee has not entered any appearance as to the appellant Cincinnati, Hamilton & Dayton Railway Company, nor in any way waived said notice, either by appearing in said cause, or in filing brief, or in any other way. At the time or before said transcript was filed in this court appellant Cincinnati, Hamilton & Dayton Railway Company did not serve notice of said appeal either upon the appellee or upon her attorneys of record, or upon any attorney representing the appellee at any time, nor did appellant Cincinnati, Hamilton & Dayton Railway Company serve any notice of appeal of this cause upon the clerk of the Marion Circuit Court at any time.

When an appellant fails to file a bond within the time allowed by the court, the appeal will be considered a vacation appeal, and notice must be given as provided by the statute. Michigan Mut. Life Ins. Co. v. Frankel (1898), 151 Ind. 534, 50 N.E. 304; Ex parte Sweeney (1892), 131 Ind. 81, 30 N.E. 884; Farwell v. Newman (1897), 17 Ind.App. 649, 47 N.E. 234; Ashley v. Henderson (1904), 32 Ind.App. 242, 69 N.E. 469.

Where an appeal is taken in term by more than one judgment defendant, and only one files a bond, the appeal as to one filing no bond is a vacation appeal, as the bond does not inure to the benefit of the judgment defendant not filing it. Goodrich v. Stangland (1900), 155 Ind. 279, 58 N.E. 148. In the case last mentioned a judgment was rendered against a number of defendants who were coparties to the judgment. Only one of them filed a bond within the time allowed by the court during the term the judgment was taken. The other coparties contended that the filing of the bond by one of the coparties inured to the benefit of all and effected a term-time appeal. The Supreme Court in holding otherwise, say: "In answer to the objection that all of the persons against whom the judgment was rendered are not joined as appellants, it is said by counsel that this was a term-time appeal, and that the omission of the names was expressly authorized by the act of 1895 (Acts 1895, p. 179, § 647a Burns 1901). Ewbank's Manual, § 126, note 1. This statement is not borne out by the record. Silas Goodrich, one of the remonstrants, took an appeal in term, and filed an appeal bond as required by the court. But the condition of the bond was that Goodrich would prosecute the appeal, and pay the judgment and costs which might be rendered, or affirmed against him. This bond did not, either in terms or in legal effect, inure to the benefit of the other judgment defendants. The filing of an appeal bond is an essential step in perfecting a term-time appeal. § 650 Burns 1894; McKinney v. Hartman (1896), 143 Ind. 224, 42 N.E. 681; Ewbank's Manual, § 9. As the appellants, other than Goodrich, filed no bond, the appeal as to them was a vacation appeal."

This decision seems to apply very directly to the question before us. Rule thirty-six of this court reads as follows "Where a cause appealed in vacation has been on the docket ninety days or more, and there is no appearance by the appellee, and no steps have been taken to bring him into court; or where a notice has been issued and proves ineffectual from any cause, and no...