Dzur v. Northern Indiana Public Service Co.

• Court: Indiana Supreme Court
• Writing for the Court: GIVAN; ARTERBURN
• Citation: Dzur v. Northern Indiana Public Service Co., 278 N.E.2d 563, 257 Ind. 674 (Ind. 1972)
• Decision Date: 16 February 1972
• Docket Number: Nos. 870S182--870S184,s. 870S182--870S184
• Parties: George H. DZUR et al., Appellants, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee. Alexander CORAZZO and Gretchen Corazzo, Appellants, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee. COUNTY ESTATES, INC. and First Federal Savings & Loan Association of Valparaiso, Appellants, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee.

Page 563

278 N.E.2d 563

257 Ind. 674

George H. DZUR et al., Appellants, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee.

Alexander CORAZZO and Gretchen Corazzo, Appellants, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee.

COUNTY ESTATES, INC. and First Federal Savings & Loan

Association of Valparaiso, Appellants, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee.

Nos. 870S182--870S184.

Supreme Court of Indiana.

Feb. 16, 1972.

Blachly, Tabor & Bozik, Duane W. Hartman, Glenn J. Tabor, Valparaiso, for appellants.

Schroer, Eichhorn & Morrow, William H. Eichhorn, James L. Kennedy, Hammond, for appellee.

GIVAN, Judge.

These cases were commenced as three separate condemnation actions brought by the appellee. The cases have been consolidated on the Court's own motion for the purposes of this opinion. This is the second appeal by the appellants between the same parties, concerning the same subject matter. See Country Estate, Inc. v. Northern Indiana Public Service Co. (1970), Ind., 258 N.E.2d 54, 21 Ind.Dec. 275. In our prior decision we reversed the trial court and remanded each case for further proceedings for the reason that the facts stated by the appellee demonstrate that 50 feet of a proposed 200 foot right-of-way was for a remote and speculative use and, therefore, was unlawful as being outside he scope of appellee's statutory authority to exercise the power of eminent domain.

The appellee has filed a motion to dismiss or affirm in which it first claims the appeals should be dismissed because the appellants have failed to file an appeal bond within the 10 days specified by the statute. Burns' Ind.Stat., 1968 Repl., § 3--1705, IC 1971, 32--11--1--5. It is appellants' contention the bond should have been filed within 10 days of July 29, 1970, but was not filed until September 21, 1970. Appellant cites no authority for his position. However, the language of the statute requires us to make the following observations:

Pursuant to Trial Rule 62(D)(1) and Appellate Rule 6(B) no appeal bond is necessary to perfect an appeal from an interlocutory order, but in order to stay an execution of judgment a supersedeas bond must be given and approved by the appropriate court. An appeal such as in the case at bar is in the nature of an appeal from an interlocutory order, since if the appellant should have failed to take this appeal any claimed error would be waived. Whitlock v. Public Service Co. of Ind., Inc. (1959) 239 Ind. 680, 159 N.E.2d 280, 161 N.E.2d 169; Thiesing Veneer Co., Inc. v. State (1970), Ind., 262 N.E.2d 382, 23 Ind.Dec. 12.

The bonding requirement of the above statute is not jurisdictional since no appeal bond is necessary under our rules from interlocutory orders. The Federal Courts in interpreting the similar Federal Rule 73(d) (now Federal Rule of Appellate Procedure 8), which rule was the basis for our Trial Rule 62(D)(2) have held the failure to provide bond is not jurisdictional. W. H. Lailer & Co. v. C. E. Jackson Co. (D.Mass.1948), 75 F.Supp. 827. Failure to comply with the rule may be grounds for dismissal, but the matter is within the discretion of the Court of Appeals, Hargraves v. Bowden (9th Cir. 1954) 217 F.2d 839; Markharm v. Kallimanis (9th Cir. 1945) 151 F.2d 145, certiorari denied 327 U.S. 788, 66 S.Ct. 806, 90 L.Ed. 1014. In exercising its discretion the matter to be considered by the court is whether the neglect to file the bond has prejudiced the opposing party. If no prejudice is shown the Federal Courts permit the filing of bond up to the time of final judgment. Sewerage and Water Board of New Orleans v. The Cumulus (5th Cir. 1949) 172 F.2d 102. An examination of the record in this case does not disclose nor does not appellee contend that it was in any way prejudiced by the late filing of the bond required by the statute. We, therefore, hold that inasmuch as appellee was not prejudiced and the bond has in fact been filed by appellant prior to decision by this Court, this appeal should not be dismissed for that reason.

Appellee has also claimed this appeal should be dismissed because appellants are seeking to raise the same questions which they raised in the prior appeal. We dealt with this same question in the case of Meyer v. NIPSCO, Ind., 278 N.E.2d 561, a companion case which is also being handed down by this Court today. The statements made in that case on the same subject are equally applicable to the case at bar. Appellee's motion to dismiss is, therefore, denied.

In these actions the appellee sought to appropriate an easement of 200 feet in width across the property of each of the appellants. The evidence in the record discloses that the appellee has immediate need for a 150 foot right-of-way for the construction of a 345 KV transmission line; that it was seeking to acquire an additional 50 feet in width because of the possibility of the need in the future for the construction of a 138 KV transmission line.

At the time this cause was remanded the trial court permitted the appellee to amend its complaint and proposed to proceed with the condemnation actions from that point. It is appellants' position that the trial court erred in proposing to go forward with the condemnation actions without first requiring the appellee to make a new offer to purchase a 150 foot right-of-way from the appellants. Burns' Ind.Stat., 1968 Repl., § 3--1701, IC 1971, 32--11--1--1 states in pertinent part as follows:

'. . . Before proceeding to condemn, such person, corporation or other body (i.e., one having the right to exercise the power of eminent domain) may enter upon any land for the purpose of examining...