Lake County Trust Co. v. Indiana Port Commission, 1034 and V

• Decision Date: 11 September 1967
• Docket Number: No. 1034 and V,No. 30989,1034 and V,30989
• Parties: LAKE COUNTY TRUST COMPANY, as Trustee under Trustirginia J. Reuterskiold, Appellants, v. INDIANA PORT COMMISSION, Appellee.
• Court: Indiana Supreme Court

Page 457

229 N.E.2d 457

248 Ind. 362

LAKE COUNTY TRUST COMPANY, as Trustee under Trust No. 1034 and Virginia J. Reuterskiold, Appellants, v. INDIANA PORT COMMISSION, Appellee.

No. 30989.

Supreme Court of Indiana.

Sept. 11, 1967.

Leonard D. Rutstein, Chicago, Ill., C. Jerome Smith, Hammond, for appellants.

John J. Dillon, Atty. Gen., Oliver M. Zeiher, Asst. Atty. Gen., Joseph G. Commiskey, Jr., Deputy Atty. Gen., for appellee.

ON MOTION TO DISMISS

JACKSON, Judge.

This matter comes to us by way of appeal from the Porter Circuit Court. Appellee instituted an action for the condemnation of real estate in which the appellants have an interest. Appellant, Lake County Trust Company, is the nominal title holder of the real state in question and appellant, Virginia J. Reuterskiold, is the mortgagee of said real estate.

In view of some of the questions presented on appeal we are setting out a chronology of events leading up to the same. The appellee filed its complaint for condemnation of appellants' real estate in the Porter Circuit Court on July 28, 1965; service of summons and a copy of the complaint were served on each of the appellants requiring their appearance in the action on September 30, 1965.

On September 20, 1965, appellants filed their general appearance and a Motion for Change of Venue from the County.

On the morning of September 30, 1965, the parties appeared in court by their respective counsel. Appellee filed instanter a brief in opposition to appellants' Motion for Change of Venue. Because of a murder trial then in progress the court was unable to hear argument and entered an order continuing the matter for argument to October 8, 1965, and granting appellants until that date to file objections to appellee's complaint.

On October 8, 1965, the parties appeared in the Porter Circuit Court by counsel. On that date appellants filed conditionally with the clerk of that court Objections to the Complaint for Condemnation, also a copy of a Petition for Removal and Notice of Removal transferring the jurisdiction of the cause to the United States District Court for the Northern District of Indiana, Hammond Division.

Thereafter proceedings were had in the Federal Court at Hammond resulting in the remand of the cause to the Porter Circuit Court on April 11, 1966. On the 28th day of April, 1966, the Porter Circuit Court acknowledged the remand and set all matters pending for hearing on Thursday, May 5, 1966, at 9:30 a.m.

Thereafter, the court held that no objections were filed to complaint in condemnation. The court then proceeded to hear evidence to satisfy the court of the regularity of the proceedings and the right of the appellee to exercise the power of eminent domain for the use sought. The court, on the 10th day of May, 1966, found for the appellee, that it was entitled to condemn and appropriate the land described in the complaint for the use therein sought, that three disinterested freeholders of the county should be, and they were, appointed to assess the damages, if any, to which the defendants (appellants) might be entitled.

On May 16, 1966, the appraisers filed their report in said matters, and thereafter on May 25, 1966, appellee filed exceptions thereto.

Thereafter, on May 26, 1966, the appellants filed their exceptions to the appraisers report. An appeal bond was filed May 20, 1966. On June 15, 1966, appellants filed their praecipe in the office of the clerk of the Porter Circuit Court demanding preparation of the transcript and record for appeal. Attached to the Bill of Exceptions is the Judge's Certificate dated June 1, 1966, and filed on said date.

Thereafter, on August 15, 1966, (pursuant to an extension of time granted by this court) appellants filed their Transcript and Assignment of Errors with the clerk of this court. Such Assignment of Errors contains thirty (30) specifications, none of which need be set out or discussed for reasons that hereafter appear.

Appellee has filed a Motion to Dismiss Appeal or Affirm Judgment, such motion inter alia alleges that there is no provision in the laws of the State of Indiana nor the Rules of this Court which provides for an appeal by the appellants herein at this time, and even if such right exists, this appeal was not perfected in time, the Transcript and Assignment of Errors were filed too late, and the appellants' brief was not timely filed.

Appellants contend in their brief on the merits that this Court has jurisdiction to hear this appeal by virtue of Acts 1901, ch. 247, § 9, p. 565 as amended by Acts 1963, ch. 279, § 1, p. 424, § 4--214, Burns' 1966 Cum.Supp., which provides in part that appeals in condemnation cases shall be brought directly to this...