Greer v. Lake
| Decision Date | 04 January 1917 |
| Docket Number | No. 9140.,9140. |
| Parties | GREER v. LAKE et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Morgan County; Nathan A. Whitaker, Judge.
Action by Martin Lake and others against James C. Greer. Judgment for plaintiffs, and defendant appeals. Cause transferred to Supreme Court.
S. C. Kivett and G. J. Kivett, both of Martinsville, for appellant. H. L. McGinnis and Will H. Pigg, both of Martinsville, for appellees.
The board of commissioners of Morgan county, in proceedings brought to that end, ordered a certain public highway to be graded, rebuilt, and surfaced, under the provisions of section 7711 et seq., Burns 1908, commonly known as the three-mile road law. Appellant was the contractor. In performing the work he destroyed certain fences on appellees' lands, and made certain extensive excavations thereon, by reason of which appellees brought this action against him in the Morgan circuit court to recover damages alleged to have been suffered by them. A trial resulted in a verdict for $40, on which judgment was rendered.
The fact that the judgment does not exceed $50 invokes the application of sections 1389 and 1391, Burns 1914. The former is section 6 of the act of 1901 (Acts 1901, p. 565) as amended in 1903 (Acts 1903 p. 280). Originally this section was to the effect that appeals in civil cases within the jurisdiction of a justice of the peace should not be taken to the Supreme or Appellate Court, except as provided in section 8 of the act. As amended in 1903, it is as follows:
“No appeal shall hereafter be taken to the Supreme *** or Appellate Court in any civil cases where the amount in controversy, exclusive of interest and costs, does not exceed $50, except as provided in section 8 of this act.”
Section 8 of the act of 1901 (section 1391, supra) remains unchanged, and is as follows:
“Every case in which there is in question, and such question is duly presented, either the validity of a franchise, or the validity of an ordinance of a municipal corporation or the constitutionality of a statute, state or federal, or the proper construction of a statute, or rights guaranteed by the state or federal Constitution, and which case would be otherwise unappealable by virtue of section six (6) or section seven (7), shall be appealable directly to the Supreme Court, for the purpose of presenting such question only.”
Section 7 referred to in the foregoing section is section 1390, Burns 1914. It deals only with criminal cases, and is therefore not applicable here. Section 9 of the act of 1901 was in part as follows:
The quoted portion of section 9 was amended in 1907 (Acts 1907, p. 237) to read as follows:
The section as amended is section 1392, Burns 1914.
Of the exceptions specified by section 1391, supra, by virtue of the existence of which this cause might be appealable, there is no contention that any are involved except it be a question of the proper construction of a statute. If such question is involved and duly presented, the cause is appealable by virtue of such section. As we must first ascertain whether this court has jurisdiction to hear this appeal in the event that it is appealable, we do not, at this time, determine whether the proper construction of a statute is involved and presented. This court has assumed jurisdiction of like appeals, at least to the extent of determining that the question involved therein did not come within any of the exceptions specified by section 1391, supra. See the following: Schultz v. Alter, 110 N. E. 230;Mantle Lamp Co. v. Bonick, 110 N. E. 558;Yakey v. Leich, 37 Ind. App. 393, 76 N. E. 926. Like cases have been appealed directly to the Supreme Court also, and final disposition has been made of them by such court. See the following: Pittsburgh, etc., Co. v. Sneath, 183 Ind. 138, 107 N. E. 72;Chicago, etc., Co. v. Anderson, 182 Ind. 141, 105 N. E. 49;Chicago, etc., Co. v. Ebersole, 173 Ind. 332, 90 N. E. 608;Stultz v. Board, 168 Ind. 539, 81 N. E. 471, 11 Ann. Cas. 1021;Hood v. Baker, 165 Ind. 562, 76 N. E. 243.
Section 1 of the act creating the Appellate Court (Acts of 1891, p. 39), as amended in 1893 (Acts 1893, p. 29; section 1382, Burns 1914), conferred jurisdiction on such court over all appeals in actions for the recovery of a money judgment only, where the amount in controversy, exclusive of costs, did not exceed $3,500. Certain causes were excepted, however, as those involving the constitutionality of a statute, etc. The effect of section 9 of the act of 1901 (Acts 1901, p. 565), however, was to extend to the Appellate Court jurisdiction in such cases regardless of the amount in controversy, subject to exceptions as indicated by the quoted portions of such sections, supra. Such section, as amended in 1907 (Acts 1907, p. 237, section 1392, Burns 1914), provides in its fourteenth subdivision, however, that all cases wherein the amount of money in controversy, exclusive of interest and costs on the judgment of the trial court, exceeds $6,000 shall be taken directly to the Supreme Court. There are exceptions here, also, as indicated by the quoted portion of said section, supra. The effect of the amendment is to limit the jurisdiction of the Appellate Court in such cases to appeals wherein the amount in controversy does not exceed $6,000. It will be observed that under the various statutes and amendments to which we have last referred in the absence of the applicability of some exception, jurisdiction in this appeal would be in the Appellate Court. But by the terms of section 1389, supra, this cause is not appealable to either the Supreme or Appellate Court, unless it comes within an exception specified by section 1391, ...
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