Daugherty v. Payne

• Decision Date: 23 May 1911
• Docket Number: No. 21,723.,21,723.
• Citation: 95 N.E. 233,175 Ind. 603
• Parties: DAUGHERTY et al. v. PAYNE et al.
• Court: Indiana Supreme Court

175 Ind. 603

95 N.E. 233

DAUGHERTY et al.

v.PAYNE et al.

No. 21,723.

Supreme Court of Indiana.

May 23, 1911.

Appeal from Circuit Court, Grant County; H. J. Paulus, Judge.

Action between Lawrence L. Daugherty and another and Samuel J. Payne and others. From an order appointing a receiver, Daugherty and another appeal. Appeal dismissed.

Brownlee & Kline and D. F. Brooks, for appellants. Alvah H. Taylor, Henry C. Pettit, and Walter S. Bent, for appellees.

MYERS, J.

This is an attempted appeal from an order appointing a receiver in a controversy between appellants and appellee Payne as to the title to, and right of possession of, real estate. Payne alone appears and files brief.

A receiver was appointed by the Grant circuit court July 2, 1910, which was the last day of the April term of that court. The record following the order appointing a receiver recites: “And the defendants herein now separately except to the order of the court herein, and ten days time is given to file all bills of exception, and an appeal is now prayed and granted to the Supreme Court of Indiana and bond is fixed in the sum of $500.00 to be filed within ten days, to the approval of the clerk of this court.” On the 6th day of July, 1910, in vacation, appellants filed with the clerk of the Grant circuit court an appeal bond in the usual form, in the penal sum of $500, with a surety, which bond was approved by the clerk, and a præcipe filed for a transcript July 7, 1910. On July 11, 1910, the bill of exceptions containing the evidence heard on the petition for the appointment of the receiver was filed with the clerk of the court. The præcipe did not call for a transcript of the appeal bond. Upon this state of the record, appellee Payne on November 5, 1910, entered a special appearance, and filed a motion to dismiss the appeal, upon the grounds: First. That no appeal bond was filed during the term. The transcript was filed in this court July 12, 1910, and no notice of appeal was given, and appellee did not appear or waive notice, and that at the time the motion was filed more than 90 days had expired since the transcript was filed. Second. That the record fails to show and certify the filing and approval of an appeal bond within 10 days from the date of the appointment of a receiver.

Appellees' contention is based upon the theory that, if the appeal is sought to be perfected as a term appeal, it has failed by reason of the surety not being approved by the court, which as to a term appeal is necessary. Michigan Ins. Co. v. Frankel, 151 Ind. 534, 50 N. E. 304;Thompson v. Connecticut Co., 139 Ind. 325, 38 N. E. 796;Hartlep v. Cole, 120 Ind. 247, 22 N. E. 130;June v. Payne, 107 Ind. 307, 7 N. E. 370, 8 N. E. 556;Mitchell v. Gregory, 94 Ind. 363;McCloskey v. Indianapolis, etc., Union, 87 Ind. 20;Ashley v. Henderson, 32 Ind. App. 242, 69 N. E. 469. The appeal appears to have been sought to be taken under the provisions of both sections 679 and 1289, Burns' 1908. Appeals from orders appointing or refusing to appoint receivers are authorized by section 1289, which in some respects changes the ordinary rules with respect to appeals. That section provides, among other things, that “the party aggrieved may within ten days thereafter (the order appointing a receiver) appeal from the decision of the court to the Supreme Court without awaiting the final determination of such case; and in case where a receiver shall be, or has been appointed upon the appellant filing an appeal bond with sufficient surety in such sum as may have been required of such receiver *** the authority of such receiver shall be suspended,” etc. The statute is special, and it has been held under it that not only must the bond be filed, but the transcript must be filed within the ten days, and that the time cannot be extended by agreement. Hursh v. Hursh, 99 Ind. 500;Flory v. Wilson, 83 Ind. 391;Vance v. Schayer, 76 Ind. 194.

[1] The general statute with respect to appeals from interlocutory orders (section 688, Burns' 1908) does not apply in this class of cases by reason of a different statute. Under section 688 even a term time interlocutory order cannot be appealed from after the term. The bond must be filed during the term. Terre Haute, etc., Co. v. Indianapolis, etc., Co., 167 Ind. 193, 78 N. E. 661;Barney v. Elkhart, etc., Co., 167 Ind. 505, 79 N. E. 492;Natcher v. Natcher, 153 Ind. 368, 55 N. E. 86;Zimmerman v. Makepeace, 152 Ind. 199, 52 N. E. 992.

[2] And, in case an appeal is taken from an interlocutory order made in vacation appointing a receiver, and the appeal is taken in vacation, in the absence of the other party, notice of the appeal must be given. Cole et al. v. Frank et al., 147 Ind. 281, 46 N. E. 532. It has been held under the general statute that, if the order is made in term, the bond must be filed in term, and the transcript filed in this court within 10 days of the date of the order, and that if the order is made in vacation, the bond must be filed at the time of the order being made, or at the next term. Barney v. Elkhart, etc., Co., supra; Terre Haute, etc., Co. v. Indianapolis, etc., Co., supra; Vance v. Schayer, supra. Also, that an appeal is taken when all the steps pointed out by the statute to confer jurisdiction upon the Supreme Court have been taken. Terre Haute, etc., Co. v. Indianapolis, etc., Co., supra, and cases cited.

[3] Except for section 1289, there could be no appeal from an interlocutory order appointing or refusing to appoint a receiver. It is a special statute conferring a statutory right, and must be strictly followed by one who would avail himself of its provisions.

[4] If the court had fixed both the penalty and the surety upon the bond, and approved it, its subsequent filing would have been but the ministerial act of the clerk in analogy to the general statute respecting appeals from final judgments, but the failure to have the court approve the bond was a failure to do one of the things which is a condition precedent to perfecting an appeal. In this case the court did not require a bond of the receiver, but approved an undertaking, and, as the statute requires a bond in the sum required of the receiver, it could not, of course, be complied with even by the clerk, but, even though that should be regarded as an informality, the failure to have the court approve the bond as a failure to perfect a term appeal upon appellants' own theory under the General Statute (section 679), and there has been no attempt to appeal under section 681, even if it were applicable. There is an apparent contradiction in some of the cases as to the question of leaving appeal bonds to be approved by clerks. In Jones v. Droneberger, 23 Ind. 74, there was a suit upon an appeal bond, where a different surety than the one approved by the court executed the bond, and he was held estopped. In Smock v. Harrison, 74 Ind. 348, and Easter v. Acklemire, 81 Ind. 163, the approval of the security was left to the clerk by the express assent of the parties, and approval by the court was held to be waived. The same thing is...