Ex parte Fennig
| Decision Date | 07 December 1939 |
| Docket Number | 27207. |
| Citation | 23 N.E.2d 678,216 Ind. 298 |
| Parties | Ex parte FENNIG et al. (Petition for Drainage). Ex parte WHIPPLE. |
| Court | Indiana Supreme Court |
Appeal from Adams Circuit Court; Henry Kister, Special Judge.
Clarence E. Benadum, of Muncie, O. A. Pursley, of Hartford City, and J. Gordon Meeker, of Portland, for appellant.
Embree & Hall, of Princeton, Omer S. Jackson, Atty. Gen., and Glen Steckley, Dep. Atty. Gen., for appellee.
This is an appeal from a judgment of the Adams Circuit Court finding the appellant, Tod Whipple, guilty of criminal contempt of said court, fixing his fine, payable to the State of Indiana in the sum of $100 and sentencing him to the Adams County jail for a period of thirty days.
The contempt of which the appellant was found guilty consisted of certain defamatory and contemptuous statements made by the appellant concerning the official acts of one Henry Kister who was at the time acting as special judge in cause numbered 12646 then pending in the Adams Circuit Court, entitled 'William Fenning et al., Ex Parte, Petition for Drainage.' The statements were made in pleadings prepared and filed by said appellant in said cause. The contempt proceedings were not docketed separately in said court but all entries in regard thereto, including the judgment, were entered under the caption and title of said drainage proceedings.
The appellant for his assignment of errors in this court used the following caption, The appellant named no appellee in such assignment of errors.
The said Henry Kister and one Homer Teeters, commissioner of construction in said drainage proceedings, concerning whom defamatory statements were also made by appellant, designating themselves 'properly appellees herein' have filed their motion to dismiss this appeal for the reason that their names were not contained in the assignment of errors as appellees. They also filed briefs in support of their motion to dismiss and briefs on the merits of the case.
The omission of the names of Henry Kister, special judge, and of Homer Teeters, commissioner of construction, from the assignment of errors was not an error on the part of the appellant and, therefore, is not a ground for dismissing the appeal. This was a case of criminal contempt and should not have been either instituted or maintained for the benefit of these two individuals. They were not, in any sense of the word, parties to the judgment appealed from. The fact that the appellant may have made contemptuous remarks and sought to injure them as individuals is no reason for making them parties to this appeal. The offense of the appellant was against the state. If said Kister and Teeters have been injured as individuals they have appropriate civil remedies for redress. In any appeal from a conviction for a crime the State of Indiana is the only proper appellee, and this is also true of an appeal from a judgment for criminal contempt.
The said Kister and Teeters filed their said motion to dismiss this appeal, the briefs in support thereof and their briefs on the merits without being parties to this appeal and without obtaining leave of the court to file such briefs. The court on its own motion, therefore, orders said motion to dismiss filed by said Kister and Teeters, the briefs which they filed in support thereof and the briefs which they filed on the merits in this case all stricken from the record.
The State of Indiana, by the attorney general, has filed herein a petition to be made a party appellee for the sole purpose of filing a motion to dismiss this appeal, which motion to be made a party has heretofore been granted by this court. The motion of the State of Indiana to dismiss this appeal is based on the fact that the state has not been made an appellee in this appeal, and that the time has now elapsed for taking the appeal and, therefore, for amending the assignment of errors to make the State a party appellee.
The judgment herein was rendered January 5, 1939, and on the same day the motion for new trial was overruled. The appellant, on March 16, 1939, filed in this court a transcript of the proceeding below. Since it has now been more than ninety days since the date of the judgment and the ruling on the motion for new trial the time for taking an appeal by the appellant has expired. Rule 1 of the Supreme and Appellate Courts as adopted June 21, 1937. It has been held by this court that where the assignment of errors has omitted naming a necessary appellee the Supreme Court does not acquire jurisdiction over the appeal and may not, after the expiration of the time for an appeal, permit such additional appellee to be named. Keiser v. Howard, 1927, 199 Ind. 137, 155 N.E. 707, Voss v. Balz, 1932, 203 Ind. 221, 179 N.E. 552.
The assignment of errors is the appellant's complaint in this court and must include, as appellees, the names of all parties who...
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