Michigan City v. State ex rel. Seidler

• Decision Date: 06 February 1937
• Docket Number: 26691.
• Parties: MICHIGAN CITY et al. v. STATE ex rel. SEIDLER.
• Court: Indiana Supreme Court

5 N.E.2d 968

211 Ind. 586

MICHIGAN CITY et al. v. STATE ex rel. SEIDLER.

No. 26691.

Supreme Court of Indiana

February 6, 1937

Appeal from Circuit Court, Marshall County; Albert B. chipman judge.

Lawrence W. Cannon, Clarence T. Sweeney, and Warren J. Rommes, all of Michigan City, and Walter R. Arnold, of South Bend, for appellants.

Neville V. Williams, of Michigan City, for appellee.

FANSLER Judge.

The relator was a member of the Michigan City fire department. In January, 1935, he was given a written notice that on the 15th day of January there would be a hearing upon the question of removing him for the cause set out in the statute (section 48-6105, Burns' Ann.St.1933; section 11478, Baldwin's Ind.St.1934). On the 16th day of January, 1935, an order was entered removing him from the fire force. Within thirty days of this order, the relator and another fireman, who had been removed at the same time, filed a complaint in the LaPorte superior court against appellant city of Michigan City. It appears from the special findings that this complaint was dismissed upon motion of the defendant city, upon the theory that the statute, section 48-6105 and section 11478, supra under which the action was brought, is unconstitutional. The statute in question provides that an action to question an order of the board of safety removing a fireman must be brought within thirty days. Thereafter, and more than thirty days after the order of the board, this action was commenced seeking a mandate against appellants requiring the reinstatement of relator as a city fireman. The facts were found specially, there were conclusions of law and judgment as prayed.

We are confronted at the outset with a motion to dismiss the appeal for want of jurisdiction. The appeal was taken under section 2-4717, Burns' Ann.St.1933, section 488, Baldwin's Ind.St.1934, which provides that: 'In all actions in which any city, or town, or those representing it in any official capacity, are entitled to pray or take an appeal of any kind, the same shall be granted or taken as to such city, or town, or such persons, without bond. Any term appeal so granted may be perfected without further notice at any time within the period of time allowed for perfecting general appeals in vacation.

'No proceedings shall be had to enforce any judgment against such city, or town, or such persons, and execution thereon shall be stayed pending an appeal therefrom.

'No bond or undertaking shall be required of any city, or town, or those representing it in any official capacity, in any proceeding or action, either by or against it, or them, in which any such bonds or undertakings are either now or may be hereafter required generally of any parties thereto.'

The judgment was rendered on December 23, 1935, and on the same day the appeal was prayed. The transcript was filed in the office of the clerk of this court on March 12, 1936, eighty days later. Appellee contends that there is no jurisdiction in this court; that 'the transcript not having been filed within sixth days after the time of giving notice of an appeal, as required by Rule 2 of this Court, the notice is without effect, and there being no other notice of appeal, the appeal should be dismissed.' But the rule of court referred to has no reference to term appeals, and this is a term appeal, and it does not limit the time in which vacation appeals may be taken. It merely makes notice of a vacation appeal ineffective after sixty days. The time within which a vacation appeal may be taken is fixed by statute. When the statute above quoted was enacted, there was in force, and there is still in force, a statute fixing the time within which vacation appeals may be taken at 180 days, and there was, and is now, no statute or rule of court otherwise limiting the time for perfecting vacation appeals. The statute under which this appeal is taken provides for a term appeal, and not a vacation appeal. Board of Public Safety of City of Muncie et al. v. Walling et al. (1933) 206 Ind. 540, 187 N.E. 385. Appellee contends that the words, 'without further notice,' in the statute, must be construed as treating the prayer for appeal as a notice, but this view overlooks the fact that the statute did not attempt to create a new type of term appeal in which notice is required, but that its only purpose was to omit the requirement of bond in a term appeal by cities or towns. Since no notice of a term appeal is required, and, since there is no statute or rule of court limiting the time in which vacation appeals can be taken, except the statute which allows 180 days, and since this appeal was perfected within 180 days, this court has jurisdiction of the appeal, and the motion to dismiss is overruled.

Error is assigned upon the overruling of demurrers to the complaint, and to certain paragraphs of reply, and upon the conclusions of law.

One of the grounds for demurrer was that the action was not brought within thirty days after the ruling of the board of public works and safety complained of, as required by section 48-6105, supra, and that it is therefore barred by limitation. While that action was against the city only, and the members of the board were not parties, that procedure was authorized by the section of the statute referred to. The actions therefore were between the same parties, concerning the same subject-matter. It is found as a fact that the appellant city procured the dismissal of the first action upon the ground that the statute is unconstitutional. It is sought to bar this action upon the ground that the statute is constitutional. Appellants concede that the relief to which appellee was entitled is identical in the two actions, and city Albert et al. v. Milk Control Board (Ind.Sup.1936) 200 N.E. 688, as authority for that view which it is. The statute therefore provides nothing new by way of relief, but only a method of procedure, including necessary parties and a limitation of time within which the action can be brought. City of Elkhart v. Minser (Ind.Sup.1937) 5 N.E.2d 501. In State ex rel. Western Construction Co. v. Board of Com'rs of County of Clinton (1906) 166 Ind. 162, 209, 76 N.E. 986, 1001, the following language was quoted with approval: 'A man must choose between different and inconsistent rights, and cannot assert one after he has deliberately elected to enforce the other.' And: 'We understand it to be a rule in the administration of justice that a man shall not be permitted to deny what he has solemnly acknowledged in a judicial proceeding, nor to shift his position at will to a contradictory one, in relation to the subject-matter of litigation, in order to prostrate and defeat the action at law upon it.' It was held that where a party upon appeal had procured this court to decide a case in his favor, upon the ground that the judgment did not preclude his adversary from asserting claims, he could not on second appeal take a position inconsistent with the theory upon which he induced the court to affirm the case. The principle is the same. The appellee had the right to submit the subject-matter of the litigation to the court. Having procured a ruling in the first case that the action under the statute would not lie because of unconstitutionality, and that appellee's remedy was by an action in mandamus, appellants cannot now be...