Michigan City v. Williamson

Citation217 Ind. 598,28 N.E.2d 961
Decision Date16 September 1940
Docket NumberNo. 27441.,27441.
PartiesMICHIGAN CITY v. WILLIAMSON.
CourtSupreme Court of Indiana

OPINION TEXT STARTS HERE

Proceeding by Claude Williamson against Michigan City, Indiana, to review an order of the Board of Public Works and Safety of Michigan City dismissing plaintiff from its police force, wherein a judgment was entered to the effect that the order of dismissal was illegal. A petition for rehearing was denied, and the city thereafter filed a motion to modify the judgment which was overruled, and the city appeals. On motion to dismiss the appeal.

Motion granted.Appeal from LaPorte Circuit Court, Wirt Worden, Judge.

Theron Miller, of Michigan City, for appellant.

J. Edwin Smith, of Gary, for appellee.

SHAKE, Judge.

On January 26, 1940, the LaPorte Circuit Court entered a judgment in an action therein pending to the effect that an order of the board of public works and safety of Michigan City dismissing the appellee from its police force was entered without affording the appellee a fair hearing and that said order of dismissal was illegal. On February 1 the city filed a petition for a rehearing, which was denied on the same day. Thereafter, on February 8, the city filed a motion to modify the judgment, which was overruled on April 8. The city thereupon prayed an appeal to this court and the transcript was filed on July 6, 1940. The appellee has moved to dismiss on the ground that the appeal was not taken within 90 days, as required by rule 1 of this court adopted on June 21, 1937. If time is to be computed from the date when the judgment was entered or the motion for rehearing was denied, the appeal comes too late, but if it runs from the overruling of the motion to modify, the case is properly before us.

The appellant relies primarily upon Pittsburgh, etc., R. Co. v. Kearns, 1920, 191 Ind. 1, 128 N.E. 42. In that case, which was an ordinary civil action, this court held that the filing of a motion to modify a judgment during the term at which it is rendered suspends and postpones the finality of the judgment until the motion is ruled upon. The conclusion was reached that a motion to modify made while the case is in fieri is a direct attack and prevents the judgment from becoming such a final determination as will cause the time for taking an appeal to begin to run. It is to be noted, however, that the proceeding which resulted in the judgment from which relief is here sought is special. The statute provides, among other things, that such proceedings are not civil actions within the contemplation of the code; that they shall take precedence over other pending litigation; that they may be tried in vacation as well as in term; that either party may petition for a rehearing within 10 days after a decision; and that the judgment shall become final when the petition for a rehearing is denied. Acts 1935...

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4 cases
  • Indiana Alcoholic Beverage Commission v. Biltz, 20745
    • United States
    • Indiana Appellate Court
    • March 27, 1968
    ...v. Parker, 1947, 118 Ind.App. 66, 74 N.E.2d 926; Zimmerman v. Zumpfe, 1941, 218 Ind. 476, 33 N.E.2d 102; Michigan City v. Williamson, 1940, 217 Ind. 598, 28 N.E.2d 961. The case of Pittsburg, etc. C.C. & St. L.R. Co. v. Kearns, 1920, 191 Ind. 1, 128 N.E. 42, on extending time for appeal mus......
  • Indiana State Personnel Board v. Parkman, 20675
    • United States
    • Indiana Appellate Court
    • February 19, 1968
    ...v. Parker, 1947, 118 Ind.App. 66, 74 N.E.2d 926; Zimmerman v. Zumpfe, 1941, 218 Ind. 476, 33 N.E.2d 102; Michigan City v. Williamson, 1940, 217 Ind. 598, 28 N.E.2d 961. The case of Pittsburgh, etc. C.C. & St. L.R. Co. v. Kearns, 1920, 191 Ind. 1, 128 N.E. 42, on extending time for appeal mu......
  • Clouser v. Mock
    • United States
    • Indiana Supreme Court
    • January 26, 1959
    ...to take an appeal, nor to reopen issues once settled, after such lapse of time as took place in this case. City of Michigan City v. Williamson, 1940, 217 Ind. 598, 600, 28 N.E.2d 961; Blagetz v. Blagetz, 1941, 109 Ind.App. 662, 665, 37 N.E.2d 318. On the other side, it is urged by the appel......
  • State ex rel. Rans v. St. Joseph Superior Court No. 2
    • United States
    • Indiana Supreme Court
    • October 28, 1964
    ...the judgment attacked. Dawson et al. v. Wright, Mayor, etc., et al. (1955), 234 Ind. 626, 129 N.E.2d 796; City of Michigan City v. Williamson (1940), 217 Ind. 598, 28 N.E.2d 961; Stampfer v. Peter Hand Brewing Co. (1917), 67 Ind. App. 485, 118 N.E. In McIntosh v. Monroe et al. (1953), 232 I......

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