Equitable Surety Company v. Taylor

• Decision Date: 20 December 1918
• Docket Number: 9,651
• Parties: EQUITABLE SURETY COMPANY v. TAYLOR ET AL
• Court: Indiana Appellate Court

121 N.E. 283

71 Ind.App. 382

EQUITABLE SURETY COMPANY v. TAYLOR ET AL

No. 9,651

Court of Appeals of Indiana

December 20, 1918

Rehearing denied March 6, 1919.

Transfer denied November 20, 1919.

From Delaware Circuit Court; Frank Ellis, Judge.

Action by Jesse B. Taylor and others against the Equitable Surety Company. From a judgment for the plaintiffs, defendant appeals.

Appeal Dismissed.

Major A. Downing, for appellant.

Kittinger & Diven, Leffler Ball & Needham, for appellees.

OPINION

BATMAN, P. J.

Appellant has attempted to perfect this appeal under § 679 Burns 1914, § 638 R. S. 1881, which reads in part as follows "When an appeal is taken during the term at which judgment is rendered, it shall operate as a stay of all further proceedings on the judgment, upon an appeal bond being filed by the appellant, with such penalty and surety as the court shall approve, and within such time as it shall direct, payable to the appellee," etc. The record discloses that the judgment in this cause was rendered on March 1, 1916; that thereafter on March 29, 1916, the same being the seventy-fifth judicial day of the January term, 1916, of the Delaware Circuit Court, appellant filed its motion for a new trial, which was overruled on the same day, and thereupon the following entry was made: "And the defendant, Equitable Surety Company, prays an appeal to the Appellate Court, which prayer is granted upon the filing, within thirty days from this date, of an appeal bond with Aetna Accident and Liability Co. of Hartford, Conn. as surety in the penal sum of Ten Thousand ($ 10,000) Dollars, subject to the approval of the court." On April 21, 1916, the same being the twenty-first judicial day of the April term, 1916, of said court, appellant filed an appeal bond in open court, in the amount and with the surety named in said order, which bond was then inspected and approved by the court. On June 24, 1916, appellant filed a transcript of the proceedings in this cause, together with its assignment of errors, in the office of the clerk of this court.

On October 19, 1916, appellees filed a motion to dismiss the appeal upon two grounds, viz.: (1) That neither the appeal bond, nor the surety thereon, was approved during the term at which the judgment was rendered, as required by § 679, supra. (2) That no sufficient assignment of errors was filed by appellant in this court. Action on this motion was postponed until the final hearing, and is now before us for determination.

It should be borne in mind that the right of appeal is purely statutory, and a party who seeks to avail himself of such remedy must comply with the statute providing for the same. Blose v. Myers (1914), 58 Ind.App. 34, 107 N.E. 548. It is well settled that, in order for a party to bring himself within the provisions of § 679, supra, and thereby perfect a term-time appeal, it is essential that the bond be approved by the court at the term at which the appeal is granted, or that the equivalent be accomplished by the court fixing the amount of the bond and naming and approving the sureties at such term, and by appellant filing the same in accordance with such order, within the time granted by the court and shown by the record. Fort v. White (1915), 58 Ind.App. 524, 108 N.E. 27; Kyger v. Stallings (1913), 55 Ind.App. 196, 103 N.E. 674; W. C. Hall Milling Co. v. Hewes (1914), 57 Ind.App. 381, 105 N.E. 241; Coxe Bros. & Co. v. Foley (1915), 58 Ind.App. 584, 107 N.E. 85; Michigan Mut. Life Ins. Co. v. Frankel (1898), 151 Ind. 534, 50 N.E. 304; Tuttle v. Fowler (1915), 183 Ind. 99, 107 N.E. 674; Rohrbaugh v. Leas, Admr. (1917), 63 Ind.App. 544, 114 N.E. 762.

Appellees contend that appellant did not file its appeal bond during the term at which the appeal was granted, and that the court did not, at such term, approve the surety on the appeal bond subsequently filed by it, and hence it failed to perfect its appeal. Appellant does not claim to have filed its appeal bond during the term at which the appeal was granted, but contends that it filed its motion for a new trial in due time; that at the time the court overruled its said motion it prayed an appeal, which was duly granted, and the court fixed the amount of the appeal bond and named the surety thereon, which it in effect approved; that thereafter, within the time given therefor, it filed its appeal bond in conformity with the order of the court, and thereby perfected its appeal.

It will be observed that the order-book entry in question does not formally recite that the court approved the surety named therein. Appellant claims that this is unnecessary, as such approval is clearly implied from the fact that the court granted the appeal prayed upon the filing of an appeal bond, within thirty days from that date, in a specified sum, with a designated surety thereon.

We would agree with this contention, if it were not for the concluding clause of the order-book entry which reads, "subject to the approval of the court," but the use of this clause clearly precludes an inference of approval.

Appellant seeks to avoid the effect of this concluding cause by asserting that it should be regarded as mere surplusage, or considered as merely reserving to the court the right thereafter to inspect the bond filed by it, to see that it measures up to the court's requirements as to penalty and surety, and was in the form provided by law.

It is an elementary rule of construction that every clause and every word of a written instrument should when possible, have assigned to it some meaning, and a harmonious whole be made to appear, as it will not be presumed that they were inserted for a mere idle purpose. This rule has often been applied to the construction of contracts. Irwin v. Kilburn (1885), 104 Ind. 113, 3 N.E. 650; Warrum v. White (1909), 171 Ind. 574, 86 N.E. 959; Nave v. Powell (1913), 52 Ind.App. 496, 96 N.E. 395; Kann v. Brooks (1913), 54 Ind.App. 625, 101 N.E. 513. But it is equally as applicable to any other document or...