Natcher v. Natcher

• Decision Date: 31 October 1899
• Docket Number: 19,136
• Citation: 55 N.E. 86,153 Ind. 368
• Parties: Natcher v. Natcher
• Court: Indiana Supreme Court

55 N.E. 86

153 Ind. 368

Natcher v. Natcher

No. 19,136

Supreme Court of Indiana

October 31, 1899

From the Boone Circuit Court.

Appeal dismissed.

S. M Ralston, C. G. Guenther and A. B. Clark, for appellant.

Thomas Hanna, R. W. Harrison and Noah Loughrun, for appellee.

OPINION

Monks, J.

This is an appeal by appellant from an interlocutory order against him for the payment of money, made at a regular term of the court below.The order for the payment of the money was made on July 1, 1899, and appellant at the time the order was made prayed an appeal, and the court fixed the amount of the appeal bond, and a surety was named by appellant and accepted by the court, and ten days given in which to file the bond.After said order was made, and appeal prayed, and on the same day, the court below adjourned for the term.On July 8, 1899 in vacation, appellant filed his bond in the amount fixed and with the surety accepted by the court, and on September 2 1899, filed the transcript in this court.

Appellee has filed a motion to dismiss the appeal on the ground that the same was not taken at the term at which said order was made.The rule is that no appeal can be taken from an interlocutory order, unless there is a statute expressly providing therefor, and such statute must be strictly construed.Western Union Tel. Co. v. Locke Adm.,107 Ind. 9, 7 N.E. 579, and cases cited;Wood v. Brewer,9 Ind. 86;Elliott'sApp. Proc., §§ 100-109;2 Ency.Pl. &Pr. 81, and cases cited in note 2.In Western Union Tel. Co. v. Lock, Adm., supra,(p. 15), Elliott, J., speaking for the court said: "It is, therefore, important that the right of appeal from all interlocutory orders should be carefully guarded, and the statutes conferring it strictly construed."

This appeal is not governed, therefore, by §§ 644,652Burns 1894, §§ 632, 640 R. S. 1881 and Horner 1897, which provide for appeals from final judgments, but by §§ 658,659,660Burns 1894, §§ 646, 647, 648 R. S. 1881 and Horner 1897, which provide for appeals from certain interlocutory orders mentioned therein.§ 658 (646)supra, provides that appeals may be taken from certain interlocutory orders, among which are "orders for the payment of money."§ 659 (647)supra, provides that, "Such appeal may be taken at the term of the court at which the order is made; or, when made 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."§ 660 (648)supra, provides that, "Such appeal shall not stay proceedings upon the order more than thirty days, unless the Supreme Court in term, or some judge thereof in term or vacation, shall otherwise order."§ 659 (647)supra, expressly prohibits the court from granting an appeal from an appealable interlocutory order until the appellant has filed his appeal bond, and limits the right to appeal from such order, if made in term time, to the term at which it is made.It is evident therefore that no appeal can be taken from an appealable interlocutory order, made in term time, unless the bond is filed and approved, and the appeal is taken at the term at which the order was made.Elliott's App. Proc. § 109.

Miller v. Burket,132 Ind. 469, 32 N.E. 309, cited by appellant...