Indiana Service Corp. v. Town of Flora

• Decision Date: 03 March 1941
• Docket Number: 27446.
• Citation: 31 N.E.2d 1015,218 Ind. 208
• Parties: INDIANA SERVICE CORPORATION et al. v. TOWN OF FLORA.
• Court: Indiana Supreme Court

31 N.E.2d 1015

218 Ind. 208

INDIANA SERVICE CORPORATION et al. v. TOWN OF FLORA.

No. 27446.

Supreme Court of Indiana

March 3, 1941

Appeal from Carroll Circuit Court; Edward E Pruitt, Judge.

Barrett Barrett & McNagny, Leigh L. Hunt, Mentor Kraus, and J. A Bruggeman, all of Fort Wayne, Cartwright, Wason & Ives of Delphi, and Lawyer, Anderson & Livingston, of Hammond, for appellants.

Roscoe Hollingsworth and Ben M. Scifres, both of Lebanon, and A. D. Bishop, of Flora, for appellee.

SHAKE Judge.

The appellee, as plaintiff below, brought this action under the eminent domain statute, § 3-1701, Burns' 1933, § 14061, Baldwin's 1934, for the condemnation of certain designated electric utility property owned and operated by the appellant Indiana Service Corporation and located in the town of Flora and within six miles thereof. The other appellants are trustees under mortgages on said property. The trial court found, over the appellants' written objections, that the appellee was entitled to appropriate the property described in its complaint, and entered an order appointing appraisers to assess the damages. The appeal is from this order.

There is pending a motion to dismiss, consideration of which was postponed until final determination on the merits. The basis of the motion is that the appeal is from an interlocutory order and that the appellants' brief was not filed within 10 days after submission, as required by rule 16 of this court adopted June 21, 1937. There is no dispute as to the facts.

The statute under which the appeal was taken provides that 'from such interlocutory order overruling such objections and appointing appraisers, such defendants, or any of them, may appeal to the Supreme * * * Court from such decision as and in the manner that appeals are taken from final judgments in civil actions * * *.' (Our italics.) It is further provided that an appeal bond shall be filed within 10 days after the appointment of appraisers and that the transcript shall be filed in the office of the clerk of this court within 30 days after the filing of the bond. § 3-1705, Burns' 1933, § 14065, Baldwin's 1934. Conflicting language appears in the same sentence of the statute. If this is an appeal from an 'interlocutory order,' the appellants' brief was not filed in time; but if it is to be treated 'in the manner that appeals are taken from final judgments in civil actions,' the motion to dismiss should be overruled.

The appellee is in error in assuming that, under § 2-3218, Burns' 1933, § 490, Baldwin's 1934, an appeal may be taken from any interlocutory order. That statute specifically enumerates what interlocutory orders are within its terms, and orders appointing appraisers in condemnation proceedings are not so embraced. Many interlocutory orders may be entered that do not come within the above statute, and as to these there may be no review until after the rendition of the final judgment, unless there is some other statute authorizing such review. While the law looks with favor upon the right of litigants to have their cases reviewed, one who seeks to take advantage of a method of appeal that is special in character and in derogation of the general regulations relating to that subject must bring himself clearly within the procedure which he undertakes to invoke. An appeal from an order overruling a defendant's objections in an eminent domain proceeding is specifically authorized, but, except as to the time when the bond and transcript shall be filed, the procedure is under the general statutes and rules relating to appeals, and not under those pertaining to interlocutory orders. The motion to dismiss is therefore overruled.

The substantial question properly presented by this appeal is the propriety of the trial court's order overruling the appellants' several objections. Such objections may serve the purposes of demurrers or answers, or both, but in this case the evidence was stipulated and the facts are not in dispute. It appears from the record that, presuming to act under § 54-612, Burns' 1933, § 14029, Baldwin's 1934 the board of trustees of the town of Flora adopted a declaratory resolution to 'acquire by purchase and/or condemnation and operate the public utility local property located in and serving said Town and within six miles of the corporate limits thereof, used and useful in furnishing electric utility service to said Town and to the consumers therein and within said adjacent territory, which said electric utility property is now owned by Indiana Service Corporation * * *.' A special election was held to determine whether the town should acquire said property, which resulted in a majority of the votes cast approving its purchase or condemnation. Negotiations for such purchase having failed, the appellee brought this action under the eminent domain statute. The appellee described the property to be acquired in its complaint, but specifically excepted 'the power system step down substation located on Lot No. 65 in A. Flora...