Mak-Saw-Ba Club v. Coffin
| Decision Date | 29 October 1907 |
| Docket Number | 20,818 |
| Citation | 82 N.E. 461,169 Ind. 204 |
| Parties | Mak-Saw-Ba Club v. Coffin, Construction Commissioner, et al |
| Court | Indiana Supreme Court |
From Starke Circuit Court; John C. Nye, Judge.
Partial report of William H. H. Coffin, as commissioner for the construction of a public drain, to which the Mak-Saw-Ba Club objects. From an order approving the report, the exceptor appeals.
Appeal dismissed.
Frank E. Osborn, William A. McVey, Lee L. Osborn, H. R. Platt and W. A. Foster, for appellant.
H. R Robbins, W. C. Pentecost and T. E. Howard, for appellees.
Appellee Coffin, as commissioner, charged with the construction of the public ditch here involved, filed an amended report, showing the completion of said ditch as ordered by the court. By his report he further showed that some of the assessments were uncollected, and that there were costs and expenses remaining unpaid. Said commissioner reported the completion of the drain, recommended its acceptance, and requested that the court continue the cause for a final report, so that he, as such commissioner, might be able to complete the collection and make the disbursements as required by law. Appellant, a landowner affected by the construction of said ditch, filed exceptions to the report going to the question of the completion of the drain, and after a hearing by the court, pursuant to request, it made and entered a special finding upon the questions thus drawn into controversy. October 9, 1905, appellant filed its motion for a new trial, and, on the same day, appellees' attorneys filed their petition for an allowance of attorneys' fees in the litigation over said report. January 29, 1906, the court overruled the motion for a new trial, and by its order the drain was "declared completed according to law," and a judgment was rendered for costs against appellant in favor of Coffin, as commissioner, "to which judgment," as the record states, "the Mak-Saw-Ba Club objects and excepts, and prays an appeal to the Supreme Court." Time was then given for a bill of exceptions, and a bond was suggested and approved. Immediately following this, according to the record, appellant moved to strike out the petition of said attorneys, and thereupon the petition was withdrawn. As the next step, and as a part of the same entry, appellee Coffin filed his petition for an allowance of attorneys' fees in said litigation. Appellant moved to strike out this petition but its motion was overruled, and a trial of said question followed, resulting in the making of an order for such allowance. To the making of this portion of the order appellant objected and excepted, and asked time for a bill of exceptions, but it did not pray an appeal or suggest a bond. Within the time fixed for the filing of a bond, as provided for in the previous part of said order appellant filed its bond, reciting that it had appealed from the judgment against it for costs. Appellant's assignments of error go to the questions of the acceptance of said drain as completed, and the allowance of said attorneys' fees.
The threshold question in this case is in regard to our jurisdiction. As this was a proceeding in the circuit court, under the statute relating to the construction of public drains, we assume that it is governed as to the procedure by the civil code. Campbell v. Fichter (1907), 168 Ind. 645, 81 N.E. 661, and cases cited.
The authority to appeal is statutory. Lake Erie, etc., R. Co. v. Watkins (1902), 157 Ind. 600, 62 N.E. 443. Section 671 Burns 1908, § 632 R. S. 1881, gives the right of appeal from final judgments, and we have no jurisdiction in any other case unless it falls within the provisions of the act of 1905 (Acts 1905, p. 490, § 658 Burns 1905), concerning appeals from certain interlocutory orders. We need not inquire whether that part of the order providing for the payment of attorneys' fees authorized an appeal under the latter statute, because, as to the portion of the order or judgment mentioned, appellant did not follow the provisions of the code concerning the taking of interlocutory appeals. Natcher v. Natcher (1899), 153 Ind. 368, 55 N.E. 86.
We are therefore remitted to the question as to whether the order from which this appeal is prosecuted, regarded as a whole, was a final judgment. As far back as Metcalfe's Case (1615), 11 Coke *38, "it was resolved that no writ of error lies until the last judgment." The general rule is that a final judgment must leave the case disposed of as to all of the parties, and, as far as is within the power of the court, put an end to the controversy. Terre Haute, etc., R. Co. v. Indianapolis, etc., Traction Co. (1906), 167 Ind. 193, 78 N.E. 661, and authorities cited; 2 Ency. Pl. and Pr., 61. There are colorable, if not real, exceptions to the rule, but as it is founded on the policy of the law to prevent unnecessary appeals, he who asserts that his case is within an exception must show a solid reason for so treating it. Western Union Tel. Co. v. Locke (1886), 107 Ind. 9, 7 N.E. 579; 1 Freeman, Judgments (4th ed.), § 33; Elliott, App. Proc., § 84. In the section last cited the authors say of the rule: "Its scope is comprehensive, and few exceptions break its force or narrow its operation." No question becomes res adjudicata until it is settled by a final judgment. 1 Freeman, Judgments (4th ed.), § 251.
The effect of such a judgment is to bring forward, for the purpose of an appeal, all merely interlocutory orders concerning which steps have been duly taken to reserve the questions, but, except as provided by statute, appeals from such orders are denied. One reason for this is that so long as a cause is in fieri intermediate orders are subject to modification or rescission by the court. Boonville Nat. Bank v. Blakey (1906), 166 Ind. 427, 76 N.E. 529; Elliott, App. Proc., § 83; 15 Ency. Pl. and Pr., 352; 23 Cyc. Law and Proc., 905. And a further reason is that public policy would be contravened, to say nothing of the statute, by permitting piecemeal appeals. In fact this court has repeatedly recognized and enforced the rule that it will not decide a cause by piecemeal or in fragments. Abshire v. Williamson (1898), 149 Ind. 248, 48 N.E. 1027, and authorities cited.
In Western Union Tel. Co. v. Locke, supra, this court quoted with apparent approval the following declaration of Judge Freeman: "The general rule recognized by the courts of the United States, and by the courts of most, if not all, the states is, that no judgment or decree will be regarded as final within the meaning of the statutes in reference to appeals, unless all the issues of law and of fact necessary to be determined were determined, and the case completely disposed of, so far as the court had power to dispose of it." 1 Freeman, Judgments (4th ed.), § 34. See, also, Elliott, App. Proc., § 83; 2 Ency. Pl. and Pr., 254; Galentine v. Brubaker (1897), 147 Ind. 458, 46 N.E. 903; Newark Plank Road, etc., Co. v. Elmer (1855), 9 N.J. Eq. 754.
In this latter case the court held that if a decree or judgment leaves important questions for further adjudication it is not final. In Elliott, App. Proc., § 83, it is said:
In Pfeiffer v. Crane (1883), 89 Ind. 485, a final judgment was thus defined and differentiated from an interlocutory order: It was said by the Supreme Court of the United States, in Bostwick v. Brinkerhoff (1882), 106 U.S. 3, 27 L.Ed. 73, 1 S.Ct. 15: "The rule is well settled and of long standing that a judgment or decree to be final, within the meaning of that term as used in the acts of congress giving this court jurisdiction on appeals and writs of error, must terminate the litigation between the parties on the merits of the case, so that if there should be an affirmance here, the court below would have nothing to do but to execute the judgment or decree it had already rendered."
In getting at the status of this proceeding at the time in question, attention should be given to the case of Perkins v. Hayward (1890), 124 Ind. 445, 24 N.E. 1033. It was there pointed out that, so far as establishing the work as a public drain is concerned, the order upon that subject constitutes the...
To continue reading
Request your trial