McCardle v. Akron Telephone Company

Decision Date16 February 1928
Docket Number12,957
Citation160 N.E. 48,87 Ind.App. 64
CourtIndiana Appellate Court

87 Ind.App. 59. At 64.

Original Opinion of May 11, 1927, Reported at: 87 Ind.App. 59.

Rehearing denied.

MCMAHAN J. Dausman, J., absent.




Before passing upon appellee's petition for a rehearing, we desire to call attention to Rule 29 of the Supreme and Appellate Courts, as amended January 1, 1924. This rule provides, in part, that: "Application for a rehearing of any cause shall be made by petition, separate from the briefs, signed by counsel, filed with the clerk within sixty days from the rendition of the judgment, stating concisely the cause for which the judgment is supposed to be erroneous, which application shall be supported by briefs only, with arguments set out therein, if desired. Eight copies of the brief must be filed at the same time the petition is filed, and one copy of the brief shall be delivered at once by the clerk to each judge."

Under this rule, an application for a rehearing must be made by a petition separate from the briefs filed in support thereof. In addition to the petition, eight copies of the brief in support thereof must be filed. While the rule does not require the brief to contain a copy of the petition, a lawyer desirous of aiding the court will set out a copy of the petition in his brief. Not only does the rule require that the brief must be filed as a separate document, but it also makes it obligatory on the party seeking a rehearing to file a brief in support of the petition. A failure to file such brief is ground for striking the petition from file. See Harmon v. Smitch (1927), 86 Ind.App. 527, 157 N.E. 284, 158 N.E. 627.

Appellee insists that the effect of the order of the Public Service Commission is to deprive it of the use of its property and amounts to a taking of its property without requiring compensation therefor to be first fixed and tendered as required by Art. 1, § 21, of the Constitution of this state, § 73 Burns 1926.

In addition to the facts heretofore stated, the record discloses that the Rochester Telephone Company was organized in 1895, and, within a year thereafter, constructed its plant at Rochester and, in connection therewith, extended a telephone line to Akron, where it had also constructed a telephone system. It also extended lines to several other towns where it had local exchanges. Later local companies were organized in the several towns and the plants theretofore installed by the Rochester company were sold to such local companies, the service lines connecting each of such lines with the Rochester plant being retained by the latter company. When the system at Akron was sold to the Akron company, the Rochester company retained the line connecting the two plants. The Akron plant and the Rochester plant are now and at all times have been connected, and since May, 1921, the only way the public could reach Akron or the subscribers of the Akron company could reach subscribers on any other line was over the line owned by the Rochester company, which, for many years, had been and now is connected with the switchboard in appellee's plant at Akron.

Appellee cites Pacific Telephone, etc., Co. v Eshleman (1913), 166 Cal. 640, 137 P. 1119, in support of the contention that the order of the commission was a taking of its property under the power of eminent domain, and was not an order regulating the business of the two companies. We are not called upon to either approve or disapprove the California case. It is not in point. The telephone companies involved in that case were competitors. Their plants had never been connected. In the instant case, the two companies are not competitors and never have been. The plants of the two companies have at all times been connected, and in a sense dedicated to a public use. The public had been using the plants of both companies and the line connecting their switchboards for more than a quarter of a century. The business over the connecting line had increased so that the one line was not sufficient. An additional line was necessary to provide the public with proper facilities. This can be accomplished without the taking of appellee's property or any part of it for a new use. All that is necessary is the construction of ...

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