Lake Erie & W.R. Co. v. Watkins

• Citation: 157 Ind. 600,62 N.E. 443
• Parties: LAKE ERIE & W. R. CO. v. WATKINS.
• Decision Date: 07 January 1902
• Court: Supreme Court of Indiana

157 Ind. 600

62 N.E. 443

LAKE ERIE & W. R. CO.

v.WATKINS.

Supreme Court of Indiana.

Jan. 7, 1902.

Appeal from circuit court, Delaware county; J. G. Lefler, Judge.

Action by John H. Watkins against the Lake Erie & Western Railroad Company. From a judgment in the circuit court affirming a justice's judgment for plaintiff, defendant appealed to the appellate court, which transferred the case to the supreme court. Appeal dismissed.John B. Cockrum and Gregory, Silverburg & Lotz, for appellant. Ryan & Thompson and Mann & Lesh, for appellee.

JORDAN, C. J.

This case has been transferred by the appellate to the supreme court in order that the latter may pass upon appellee's motion to dismiss the appeal, in opposing which motion appellant raises the constitutional validity of section 6 of an act of the legislature “concerning appeals,” approved March 12, 1901, which was in full force from and after that date by virtue of the emergency therein declared. Acts 1901, p. 565. Section 6 of the act reads as follows: “No appeal shall hereafter be taken to the supreme court or to the appellate court in any civil case which is within the jurisdiction of a justice of the peace except as provided in section eight of this act.” Section 8 of the act wherein the exceptions referred to in section 6 are reserved is as follows: “Every case in which there is in question, and such question is duly presented, either the validity of a franchise, or the validity of an ordinance of a municipal corporation or the constitutionality of a statute, state or federal, or the proper construction of a statute, or rights guaranteed by the state or federal constitution, and which case would be otherwise unappealable by virtue of section six (6) or section seven (7), shall be appealable directly to the supreme court, for the purpose of presenting such question only.” The record discloses that appellee commenced this action before a justice of the peace, under the statute which renders railroad companies liable for the killing or injuring of stock (sections 5312, 5313, Burns' Rev. St. 1901; sections 4025, 4026, Horner's Rev. St. 1901), to recover for a horse killed by the cars of appellant at a point on its railroad track where its right of way was not securely fenced. A trial before the justice resulted in a recovery in favor of the appellee, and thereupon appellant appealed from the judgment to the Delaware circuit court, where a trial resulted in the rendition of a judgment on January 28, 1901, in favor of appellee for $70 and costs. From this judgment appellant on the same day prayed an appeal to the appellate court, which was granted on condition that it file its appeal bond in the sum of $200 within 20 days, with certain sureties named, and approved by the court. On January 28, 1901, appellant filed its appeal bond. On the 3d day of May, 1901, it filed a transcript of the proceedings of the lower court, together with its assignment of errors, in the appellate court. The transcript not having been filed in the office of the clerk of the supreme court within 60 days after filing the appeal bond, as required by section 650, Burns' Rev. St. 1901 (section 638, Horner's Rev. St. 1901), appellant must be deemed to have abandoned the term-time appeal which it originally undertook to prosecute. See McKinney v. Hartman, 148 Ind. 224, 42 N. E. 681; Rule No. 1 of this and appellate court (55 N. E. iv.); Ewbank, Man. § 102. Appellant, after having abandoned the term-time appeal in question, on May 3, 1901,-nearly two months after the taking effect of the act of 1901,- attempted to take what is commonly denominated a “vacation appeal.” If the case is appealable under any law in force at the date of filing the transcript in the appellate court, then such appeal must be held and deemed to have been taken on May 3, 1901, the time of the filing of the transcript and assignment of errors. Rule No. 1 of this and appellate court (55 N. E. iv.); Ewbank, Man. § 102. The motion to dismiss the appeal states the following reasons: “(1) The cause is not one in which an appeal lies to this court. (2) The court has no jurisdiction of the subject-matter of this action. (3) The cause in which this appeal is attempted to be taken was and is one within the jurisdiction of a justice of the peace, and does not involve the validity of a franchise, or the validity of an ordinance of a municipal corporation, nor does it in any way or manner involve the constitutionality of a statute, state or federal, or rights guarantied by the state or federal constitution.” It will be observed that the motion negatives all of the exceptions embraced in section 8, supra, except that relating to the proper construction of a statute. Counsel for appellant contend that their client has the right to prosecute this appeal for several reasons: First, because by sections 243, 248, Burns' Rev. St. 1901 (sections 243, 248, Horner's Rev. St. 1901), its right to appeal is not affected by section 6 of the act of 1901; second, that the appeal involves the construction of a statute, and is therefore within the exception of section 8; third, that the act is not retroactive, and does not apply to pending litigations; finally, it is insisted, in effect, that under the construction of this statute appellant's right to an appeal is protected, and therefore the act of 1901, so far as it attempts to deny this right, is unconstitutional and void. Section 243, supra, provides: “No rights vested, or suits instituted, under existing laws shall be affected by the repeal thereof, but all such rights may be asserted and such suits prosecuted, as if such laws had not been repealed.” Section 248, supra, provides: “Whenever an act is repealed which repealed a former act, such act shall not thereby be revived, unless it shall be so expressly provided. And the repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture or liability incurred under such statute, unless the repealing act shall so expressly provide; and such statute shall be treated as still remaining in force for the purpose of maintaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability.” It is certainly too clear for successful argument that neither of these sections has any application to the question here involved. The provisions therein are not designed in any manner to apply to any right of appeal to either the appellate or supreme court that might be cut off or destroyed by the repeal of a statute. The first section above set out refers to rights that had become vested under existing laws and to suits instituted in the lower courts. These rights and the prosecution of such suits this section declares shall not be affected by the repeal of such existing laws. Prosecuting an appeal to either the supreme or appellate court certainly cannot be said to be the institution of a suit within the meaning of section 243. It is equally evident that such an appeal is not for the recovery of any penalty or for the enforcement of any liability, as mentioned in section 248, supra. That a party to a suit or action has no vested right to appeal or prosecute a writ of error from one court to another in the absence of constitutional protection in that respect is a well-settled proposition. Neither by instituting or by defending an action or a suit does a party thereby acquire a vested right to a decision from a particular court or tribunal. This doctrine, so universally asserted and supported by the authorities, is but an affirmation or extension of the familiar principle that there is no vested right in a remedy. Bailey v. Kincaid, 57 Hun, 516, 11 N. Y. Supp. 294; Railroad Co. v. Grant, 98 U. S. 398, 25 L. Ed. 231;Dismukes v. Stokes, 41 Miss. 430;Mayne v. Board, 123 Ind. 132, 24 N. E. 80;Branson v. Studabaker, 133 Ind. 147, 33 N. E. 98;Hughes v. Parker, 148 Ind. 692, 48 N. E. 243;Sims v. Hines, 121 Ind. 534, 23 N. E. 515;Ryan v. Waule, 63 N. Y. 57;Sullivan v. Haug, 82 Mich. 548, 46 N. W. 795, 10 L. R. A. 263; Elliott, Ind. App. Proc. §§ 75, 76, 354; 2 Enc. Law & Proc. p. 507; Cooley, Const. Lim. pp. 469, 472, 473; 2 Enc. Pl. & Prac. 19; Railroad Co. v. Thompson (Ind. App.) 61 N. E. 595. In Sullivan v. Haug, supra, the court said: “The right to an appeal is, and always has been, statutory, and does not exist at...