Jerzakowski v. City of South Bend

• Decision Date: 12 November 1924
• Docket Number: 12,009
• Citation: 145 N.E. 520,82 Ind.App. 132
• Parties: JERZAKOWSKI v. CITY OF SOUTH BEND
• Court: Indiana Appellate Court

145 N.E. 520

82 Ind.App. 132

JERZAKOWSKI v. CITY OF SOUTH BEND

No. 12,009

Court of Appeals of Indiana

November 12, 1924

From St. Joseph Superior Court; Lenn J. Oare, Judge.

Action by the City of South Bend against Casimier Jerzakowski to recover penalty for violation of city ordinance. From judgment for plaintiff, the defendant appeals.

Dismissed.

Joseph V. Wypiszynski and Walter R. Arnold, for appellant.

Hammond & Omacht, for appellee.

OPINION

BATMAN, J.

This is an action by appellee against appellant to recover a penalty for the violation of a municipal ordinance, in which a judgment was rendered in the city court for the sum of $ 50. Appellant appealed to the superior court but that court refused to assume jurisdiction, and, on motion of appellee, dismissed the appeal. Judgment was rendered against appellant for costs, and this appeal followed. The first question to be determined is one of jurisdiction. It is well settled that the right of appeal is wholly statutory, except where expressly secured by the Constitution. Hall v Kincaid (1917), 64 Ind.App. 103, 115 N.E. 361. The legislature has provided that appeals may be taken by either party from circuit and superior courts to the Supreme or Appellate Court, from all final judgments, with certain specified exceptions, among which we find the following "No appeal shall hereafter be taken to the supreme or appellate court in any civil case where the amount in the controversy, exclusive of interest and costs, does not exceed $ 50, except as provided in section 8 of this act." § 1389 Burns 1914, Acts 1903 p. 280.

The action in the instant case has for its object the recovery of a penalty for the violation of a municipal ordinance, and hence is a civil case, controlled by the civil practice. Ridge v. City of Crawfordsville (1892), 4 Ind.App. 513, 31 N.E. 207; City of Hammond v New York, etc., R. Co. (1892), 5 Ind.App. 526, 31 N.E. 817; Griffee v. Town of Summitville (1894), 10 Ind.App. 332, 37 N.E. 280; City of Greensburg v. Cleveland, etc., R. Co. (1899), 23 Ind.App. 141, 55 N.E. 46; Smith v. City of New Albany (1910), 175 Ind. 279, 93 N.E. 73. By this appeal, appellant is seeking a reversal of a judgment of the superior court, in order that it may be required to assume jurisdiction of this action, and thereby be relieved from the payment of a judgment of the city court, through a trial of the same on appeal. As the judgment of the city court is not based on a demand which was, or could have been reduced by set-off or counter-claim, it is apparent that the amount in controversy, exclusive of interest and costs, does not exceed $ 50. Schultz v. Alter (1915), 60 Ind.App. 245, 110 N.E. 230. None of the questions enumerated in said § 8, being § 1391 Burns 1914, Acts 1901 p. 585, are involved in this...