Mikesell v. South Bend Electric Co.
| Decision Date | 30 October 1902 |
| Docket Number | 4,245 |
| Citation | 65 N.E. 11,29 Ind.App. 686 |
| Parties | MIKESELL, ADMINISTRATOR, v. SOUTH BEND ELECTRIC COMPANY |
| Court | Indiana Appellate Court |
From St. Joseph Circuit Court; W. A. Funk, Judge.
Action by Frank Mikesell, administrator of the estate of Chester Hess, deceased, against South Bend Electric Company for damages for the death of decedent. From an interlocutory order suspending further action until the costs of a former suit were paid, plaintiff appeals.
Appeal dismissed.
C. A Davey and Adelbert Harriss, for appellant.
A. L Brick and D. D. Bates, for appellee.
The record before us shows the filing of the appellant's complaint, which is set out, for the recovery of damages for the death of his intestate through the alleged negligence of the defendant, the appellee. Next after the complaint in the transcript is an entry of the filing by the plaintiff of his bill of exceptions on the 4th of February, 1901, being the first juridical day of the February term, 1901; and immediately following this entry is the bill of exceptions, after which is the clerk's final certificate to the transcript. The clerk has not transcribed and certified any record entry of any judgment or order or of any proceedings, except as above indicated. In the bill of exceptions there is a recital of an order as follows: "Be it remembered that afterwards, and on the said 16th day of November, 1900, the same being the 11th juridical day of said term of said court [the November term, 1900,] and before the judge aforesaid, the following further proceedings were had in said cause, to wit: Issue being joined, parties by their attorneys appeared before said court, and after argument of counsel thereon and upon due consideration of said court, the court ordered and adjudged that said proceedings be suspended until the costs of the former suit are paid, and further ordered and adjudged that said costs must be paid on or before February 1, 1901, or said cause shall be dismissed; to which ruling the plaintiff then excepted and prayed an appeal from said ruling of said court to the Supreme Court of the State of Indiana, and at which time asked for sixty days' time in which to file bill of exceptions, which time was granted by said court." The matter thus referred to as having been tried, as indicated by preceding portions of the bill of exceptions, was a motion of the defendant, the appellee, for an order staying further proceedings and trial of this cause until the costs of a former action, voluntarily dismissed by the plaintiff, appellant herein, should be paid, and fixing a time within which said costs should be paid by the plaintiff, the appellant; which motion was heard, as so stated in the bill, upon affidavits of the contending parties.
There is nothing in the bill or elsewhere in the transcript indicating that any judgment or order was subsequently rendered or made, except that it is indicated in the bill that on the first day of the February term, 1901, the court upon the mutual agreement of the parties, extended the time for filing the bill until the 5th day of February, 1901. The transcript of the record on appeal was filed in the Supreme Court on the 31st day of May, 1901. It is from the order staying proceedings so referred to...
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