Hockemeyer v. Thompson

• Decision Date: 31 March 1898
• Docket Number: 18,389
• Citation: 49 N.E. 1059,150 Ind. 179
• Parties: Hockemeyer et al. v. Thompson
• Court: Indiana Supreme Court

49 N.E. 1059

150 Ind. 179

Hockemeyer et al. v. Thompson

No. 18,389

Supreme Court of Indiana

March 31, 1898

Original Opinion of January 5, 1898, Reported at: 150 Ind 176.

OPINION

McCabe, J.

Appellees learned counsel, in support of their petition for a rehearing, say: "It seems to us that appellant's counsel, as well as the court, has misapprehended the meaning of the words, all other appellate jurisdiction in civil causes now vested in or which may hereafter be vested by law in the circuit courts. The words 'and all other appellate jurisdiction in civil causes now vested in, or which may hereafter be vested by law in the circuit courts,' can not refer to appeals from boards of county commissioners. The superior court was sufficiently given jurisdiction of appeals from boards of county commissioners and, therefore, 'other appellate jurisdiction' must refer to something besides appeals from boards of county commissioners. Otherwise the word 'other' would have no meaning."

If the language of the jurisdictional section 10 of the Allen county superior court act, preceding the language just quoted therefrom, includes jurisdiction of appeals in drainage proceedings, then appellee's contention that the words just quoted did not include it is right. But in that case the jurisdiction of such appeals would be conferred on the superior court of Allen county, making the action of that court in dismissing the appeal erroneous, unless we were wrong in holding in the original opinion that the phrase "civil cases" and "civil causes" "were evidently used in contradistinction to criminal cases for the purpose of including all cases other than criminal cases." But appeals from boards of commissioners in drainage proceedings under the drainage act of 1881 could not very well have been intended to be included in the language, "in all cases of appeals from * * * boards of county commissioners," employed in the fore part of section 10 of the act of 1877, because the right of appeal in drainage proceedings under the drainage act of 1881 did not then exist. And hence the language in the concluding part of the section vesting in the Allen superior court "all other appellate jurisdiction in civil causes now vested in or which may hereafter be vested in the circuit courts" necessarily vested in the superior court all appellate jurisdiction in civil causes which was then vested in the circuit court, or which might thereafter be vested in the circuit court. Now, appellee's contention is that the appellate jurisdiction involved in this case was afterwards vested in the circuit court. Such a result, however, is only reached by an implication from the language employed in the drainage act of 1881. But, concede that it was expressly conferred on and vested in the circuit court by that act, so long as it was not thereby vested exclusively in the circuit court, there is no excuse furnished by appellee's counsel for refusing to give effect to the language of the superior court act vesting in that court the same appellate jurisdiction that was afterwards vested in the circuit court. And the learned counsel do not even pretend that there is any language in the drainage act of 1881 vesting jurisdiction of appeals in such cases exclusively in the circuit court. They do, however, contend and cite an overwhelming list of cases to the effect that when a new right is created by a statute and a remedy provided, that such remedy is exclusive...