Miller v. Burket

• Decision Date: 26 October 1892
• Docket Number: 15,743
• Citation: 32 N.E. 309,132 Ind. 469
• Parties: Miller v. Burket et al
• Court: Indiana Supreme Court

32 N.E. 309

132 Ind. 469

Miller v. Burket et al

No. 15,743

Supreme Court of Indiana

October 26, 1892

From the Cass Circuit Court.

The judgment is reversed, at the appellees' costs.

D. C Justice, D. H. Chase and D. D. Fickle, for appellant.

M Winfield and J. C. Nelson, for appellees.

OPINION

McBride, C. J.

Appeal from a temporary injunction granted in vacation. The complaint alleges that the plaintiff was the owner, and in the quiet and peaceable possession of certain land, on which was growing at a certain date eighty-three acres of wheat. "That on the 30th day of June, while this plaintiff was thus in the quiet and peaceable possession of said land, and while he was engaged in cutting said wheat the defendants without right and with force and arms, tore down the plaintiff's fences, and entered upon said premises unlawfully and interfered with the plaintiff and the men whom he had employed and his teams, in their aforesaid lawful occupation of harvesting and cutting said wheat, and commenced cutting down the same, denying the right of this plaintiff so to do, with threats of personal violence and force, drove into the field; that it is now at the season of the year when said wheat should be cut and harvested, and if the plaintiff and his men are thus interfered with and prevented, said wheat will be utterly destroyed and entirely lost; that said defendants have likewise torn down the fences on the public highway and opened up said fields to the public, endangering the destruction of said wheat by cattle that may be straying along the highway; and the defendants unlawfully claim the right at all times and from day to day to tear down the fences and to enter the plaintiff's premises; that the plaintiff, as the owner of said land, in the lawful possession thereof, is entitled under the law to have his possession protected, and should be allowed to exercise his rights as the owner of said lands and in the possession thereof, free and undisturbed; and that by reason of the violent conduct of the defendants it was an impossibility for him to protect his possession, and enjoy his aforesaid freehold without resort to violence and bloodshed, which he desires to avoid; that for this reason, and in order that he may not be disturbed in the quiet and peaceable possession of his said lands, it is necessary that a restraining order should be granted, and the defendants and each one of them be enjoined from interfering by force and violence, and leave the possession of his lands, and that he may be allowed to harvest his aforesaid crop of wheat without disturbance and delay; that there is an immediate necessity for the issuing of the restraining order, as before a hearing can be had upon notice they will continue to disturb the plaintiff's fences and prevent the plaintiff and his men from harvesting said wheat, whereby the same may become worthless and entirely destroyed. Wherefore," etc.

The appellant insists that the facts averred are not sufficient to justify the court in granting a temporary injunction. In approaching this question we meet the contention of the appellee that there has been no appeal within the meaning of the statute, and hence, there is no case properly before us. The statute provides that appeals may be prosecuted to this court from an interlocutory order of injunction granted in vacation. Section 646, R. S. 1881, clause 3. Section 647 provides that when the injunction is granted in vacation "The appeal may be taken at the time or during the next term. The appeal shall not be granted until the appellant has filed an appeal bond, as in other cases of appeal."

The only entries in the record relating to the appeal are as follows: July 8, 1890, the following entry was made: "Come again the parties, and the court having heard the evidence, and being fully advised in the premises, it is ordered that the restraining order herein be continued until the further order of the court, from which interlocutory order the defendants pray an appeal to the Supreme Court, which is granted upon filing an appeal bond in the sum of $ 200, and twenty days' time is allowed defendants to file appeal bond and bill of exceptions." * * * *

Under date of July 19 the following appeared:

"And afterward, to wit: on the 19th day of July, 1890, the defendant, Henry Newton Miller, filed in the office of the clerk of the Cass Circuit Court his appeal bond in said cause, which is in words and figures following, to wit": Then follows a copy of appeal bond, which the record shows was "taken and approved" by the clerk of the court on that day. The position of the appellee is that as the appeal in such cases is not governed by the general statute relating to appeals, but by special statutory provisions, there must be strict compliance with all such provisions or there is no appeal. Counsel say: "We therefore conclude that before there can be an appeal from the granting of a temporary injunction, either in term time or in vacation, the court or judge must fix the amount of the bond, the bond must be approved by the court or judge, or time must be taken to file a bond, the sureties being named, and the court or judge must approve the sureties." The question was properly presented, and at the proper time by a motion to dismiss, so that there is no waiver.

Section 646, supra, which authorizes appeals from interlocutory orders, provides that such appeals may taken in several classes of cases.

In some of them the filing of a bond has the effect of staying the operation of the order or judgment of the court below. This however, is not true of an order of injunction. Such an order continues in operation and in force notwithstanding the appeal, and notwithstanding the filing of a bond. State, ex rel., v. Chase, 41 Ind. 356; Central Union Telephone Co. v. State, ex rel., 110 Ind. 203, 10 N.E. 922; Walls v. Palmer, 64 Ind. 493; Randles v. Randles, ...