McKinney v. Hartman

• Decision Date: 08 January 1896
• Docket Number: 17,698
• Citation: 42 N.E. 681,143 Ind. 224
• Parties: McKinney v. Hartman
• Court: Indiana Supreme Court

42 N.E. 681

143 Ind. 224

McKinney v. Hartman

No. 17,698

Supreme Court of Indiana

January 8, 1896

From the Harrison Circuit Court.

Judgment affirmed.

J. K Marsh, for appellant.

A Dowling, for appellee.

OPINION

McCabe, J.

This was an action by the appellant against appellee and one Bennett H. Young on an appeal bond in the Floyd Circuit Court, from whence the venue was changed to the Harrison Circuit Court. There was no service and no appearance as to Young.

Both he and appellee were sureties on the appeal bond.

The complaint was in three paragraphs, to the first and third of which a demurrer for want of sufficient facts was sustained. A demurrer for want of sufficient facts was overruled to the second paragraph of the appellee's answer. The issues joined were tried by the court without a jury, resulting in a general finding for the appellee, upon which he had judgment over appellant's motion for a new trial. The errors assigned call in question the several rulings upon demurrer, and in overruling appellant's motion for a new trial. We do not inquire as to the sufficiency of the first and third paragraphs of complaint, because all the facts stated in them could have been proven under the second paragraph. The material facts stated in the second paragraph of the complaint are that on the 31st day of May, 1893, in an action pending in the Clark Circuit Court, wherein appellant was plaintiff, and the Kentucky and Indiana Bridge Company was defendant, a judgment was duly rendered against said company for $ 3,500.00 for personal injuries sustained by appellant through the negligence of said company, from which said company duly appealed to the supreme court of Indiana during the term of said Clark Circuit Court, at which said judgment was rendered; that said circuit court required bond to be given by said company in the penalty of $ 4,500.00 within thirty days, that being the amount and penalty of said bond fixed by the court, said Hartman and Young being approved as sureties thereon by the court; that within the time so fixed by the court, said company filed said bond in the penalty of $ 4,500.00 with said defendants, Hartman and Young, as sureties, a copy of which is filed with and made an exhibit to the complaint; that on February 13, 1894, said judgment was duly affirmed against said company, and judgment rendered against it for costs taxed at $ 40.00. The appeal bond is in the usual form with the conditions prescribed by section 650, R. S. 1894 (R. S. 1881, section 638), namely, that "if said * * company shall, and will duly prosecute said appeal, and abide by, and pay the judgment and costs which may be rendered or affirmed against it, then the above obligation to be null and void, otherwise to be and remain in full force, etc."

The breach assigned is that said company has not paid the judgment, or any part thereof, and that the same remains wholly unpaid. The same question arises on the ruling overruling the demurrer to the second paragraph of the answer that arises on the action of the court in overruling the motion for a new trial, and that is the only point in controversy on this appeal. It is averred among other things in said answer that said judgment was rendered May 31, 1892, and that the appeal bond in the penalty, and with sureties thereon, said Young and appellee, Hartman, fixed and approved by the court, was filed on June 18, 1892, being within the time prescribed by the court. But the defendant says that said * * company did not file a transcript of the record in said case * * in the supreme court within sixty days after the filing of said bond * * * that said company did not file * said transcript in the supreme court until the 21st day of February, 1893.

It was, therefore insisted, these facts appearing by agreement on the trial, that the term time appeal was abandoned and that the answer stated facts sufficient, and was a bar to the complaint, assigning as it did no other breach of the bond than the non-payment of the judgment rendered and affirmed by this court. The trial court upheld this contention both in holding the answer good on demurrer, and in finding for the defendant the appellee on the trial.

There are two distinct methods of taking an appeal to this court provided for in the statute. One is a term time appeal as provided by section 650, R. S. 1894 (R. S. 1881, section 638), supra; the other is an appeal after the term or in vacation as provided by section 652, R. S. 1894 (R. S. 1881, section 640). No notice to the adverse party is required in a term time appeal, but an appeal bond with such penalty and surety as prescribed and approved by the trial court must be filed within such time as it shall direct, and the transcript must be filed in the office of the clerk of the supreme court within sixty days after filing the bond, R. S. 1894, section 650 (R. S. 1881, section 638), supra.

By virtue of this section the appeal operates to stay proceedings on the judgment upon an appeal bond being filed by the appellant as therein provided. This stay begins as soon as the bond is filed, even though that is before the appeal is perfected, and without any other step in that direction taken than the prayer for the appeal, the order of the court approving surety and penalty, and directing the time of filing the bond. Ham v. Greve, 41 Ind. 531; Mitchell v. Gregory, 94 Ind. 363. Section 651, R. S. 1894 (R. S. 1881, section 639), provides "In all cases appealed to the supreme court, where bond shall have been filed in the court below in term and execution therein stayed, and the appellant shall fail to file in the office of the clerk of the supreme court the record of the case so appealed within the time required by law, the party in whose favor the judgment may be in the court below may have execution thereon, upon the filing with the clerk of the proper court the certificate of the clerk of the supreme court showing that said record was not so filed in proper time: Provided, however, That nothing in this section shall be so construed as to prevent any such appellant from filing the transcript, and perfecting an appeal...