Heller v. Clark

• Decision Date: 12 December 1885
• Docket Number: 12,155
• Citation: 3 N.E. 844,103 Ind. 591
• Parties: Heller v. Clark, Administratrix
• Court: Indiana Supreme Court

3 N.E. 844

103 Ind. 591

Heller v. Clark, Administratrix

No. 12,155

Supreme Court of Indiana

December 12, 1885

From the Henry Circuit Court.

Appellee's motion to dismiss the appeal is overruled, at her costs.

J. H Mellett and E. H. Bundy, for appellant.

W. R Hough, for appellee.

OPINION

Howk J.

A written motion has been filed by the appellee to dismiss this appeal for the following causes, namely:

"1. Because such appeal was not taken and perfected within twenty days after the rendition of the judgment of the court below, as required by the statute in such cases made and provided;

"2. Because appellant did not file the transcript of the record of the Henry Circuit Court in such cause in this court within twenty days after the rendition of the judgment therein by such circuit court;

"3. Because appellant has filed no appeal bond in this cause, either in this court or in the Henry Circuit Court, or in the office of the clerk of either of such courts, as required by the statute in such cases; and,

"4. Because appellant has filed no appeal bond whatever in such cause, at any time or place."

This motion has been filed by the appellee upon the theory, of course, that the case at bar is one wherein the right of a party to appeal to this court, and the manner of taking such appeal, and the time within which the appeal must be taken and perfected, are each and all provided for, regulated and governed by the provisions of sections 2454 to 2457, R. S. 1881. We are of opinion, however, that the appeal in this cause is in no sense governed by the provisions of those sections of the statute. The suit was commenced in the court below on the 24th day of May, 1881, by one Meredith Walker, as sole plaintiff, against appellant, Moses Heller, and one William H. Thompson, then the sheriff of Hancock county, as defendants. The object of the suit was to obtain a decree of the court annulling and avoiding a certain judgment which Heller had, before that time, recovered against Meredith Walker and one Thomas L. Marsh, in the Hancock Circuit Court, and perpetually enjoining Heller and the sheriff aforesaid from collecting, or attempting to collect, such judgment, or any part thereof, or any execution issued thereon, of or from Meredith Walker. Pending this suit in the court below, the death of Meredith Walker, intestate, was suggested to the court, and that appellee, Catharine J. Clark, was the administratrix of such decedent's estate; and thereupon the court ordered that she be substituted as the plaintiff in this cause. Afterwards, on the 6th day of March, 1884, upon the hearing of this cause then had, a finding and decree were made and rendered herein in favor of the appellee, as prayed for in the original and supplemental complaint, and against appellant Heller and sheriff Thompson.

This appeal was taken by the filing of a certified transcript of the record, and appellant's assignment of errors endorsed thereon, in the office of the clerk of the Supreme Court, on the 9th day of February, 1885, and within one year after the rendition of the judgment and decree herein by the Henry Circuit Court.

In section 2454, R. S. 1881, it is provided that "Any person considering himself aggrieved by any decision of a circuit court, or judge thereof in vacation, growing out of any matter connected with a decedent's estate, may prosecute an appeal to the Supreme Court," etc. If it could be correctly said that the judgment and decree of the circuit court in the case in hand grew out of any matter connected with a decedent's estate, within the meaning of that expression as used in the statute, then it would be clear that appellee's motion to dismiss this appeal was well taken, and would have to be sustained. Because, in such case, the right of appeal would be governed strictly by sections 2454 to 2457, supra, and there was no compliance, nor any attempt at compliance, with the provisions of those sections on the part of appellant, nor was the appeal in fact perfected until more than eleven months had elapsed after the rendition of the judgment and decree by the Henry Circuit Court. In construing these sections of the statute, we have held, and correctly so, we think, that in any appeal authorized thereby, and taken thereunder, the appellant must perfect his appeal by filing a certified transcript of the record, in the office of the clerk of this court, at the latest, within twenty days after the decision, by which he considered himself aggrieved, was made or rendered by the circuit court, or judge thereof in vacation, unless ...