Neff v. City of Indianapolis
| Decision Date | 21 November 1935 |
| Docket Number | 26385 |
| Citation | 198 N.E. 328,209 Ind. 203 |
| Parties | NEFF et al. v. CITY OF INDIANAPOLIS et al |
| Court | Indiana Supreme Court |
Action by Marion A. Neff and another against the City of Indianapolis and another. From an adverse judgment plaintiffs appeal. Transferred from Appellate Court under Burns' Ann. St. 1926, § 1357, cl. 2.
Affirmed.
Superseding opinion of the Appellate Court in 178 N.E. 870.
Appeal from Superior Court, Marion County; James M. Leathers, judge.
Merle N. A. Walker, of Indianapolis, for appellants.
Edward H. Knight, Herbert M. Spencer, James E. Deery, and Pickens Davidson, Cause, Gilliom & Pickens, all of Indianapolis, for appellees.
This is an action by appellants seeking to enjoin the vacation of a street under legislation by the board of public works of the city of Indianapolis pursuant to section 10351, Burns' 1926. Demurrers to the complaint were sustained, which action of the court is assigned as error.
But, first, we are confronted with a motion to dismiss the appeal, which questions the sufficiency of the service of process to bring appellees within the jurisdiction of the court. Notices were issued by the clerk to the sheriff, commanding him to notify 'the City of Indianapolis' and 'the Pennsylvania Railroad Company' of the appeal. The notices described the cause correctly and indicated that it was an appeal from the Marion circuit court in which appellants were plaintiffs and 'the City of Indianapolis, Indiana, and the Pennsylvania Railroad Company were defendants.' The sheriff made return as to the notice to the Pennsylvania Railroad Company as follows: 'Served on the within appellee The Pennsylvania Railroad Co. in the City of Indianapolis Union Station Room 310 Joseph F. Doers, Chief Clerk to Superintendent He being the highest officer found in my bailwick, by reading to and within his hearing, this 18 day of November, 1930.' This return sufficiently shows proper service. Return upon the notice to the city is as follows: 'Served on the within Nov 14th 1930 by reading to and within the hearing, this 14 day of Nov., 1920.' In addition, there is indorsed upon the bottom of the notice the following: Afterwards, upon the order of the Appellate Court, the sheriff certified that
Where service of notice of a vacation appeal is necessary, service upon an attorney, and not upon the principal, will not suffice. Tate v. Hamlin et al. (1895) 149 Ind. 94, 41 N.E. 356, 1035; Abshire et al. v. Williamson (1898) 149 Ind. 248, 48 N.E. 1027. But service of notice is not absolutely essential, and an appearance will obviate the necessity of notice. Rich v. Starbuck (1873) 45 Ind. 310; Lowe v. Turpie et al. (1896) 147 Ind. 652, 44 N.E. 25, 47 N.E. 150, 37 L. R. A. 233; Perkins et al. v. Indiana Mfg. Co. et al. (1915) 58 Ind.App. 220, 108 N.E. 165.
The record in the office of the clerk, of which the notice and return are part, indicates that service upon the city had been had upon some one, and that the attorney for the city, whose right and duty it was to represent the city in all cases, including appeals, had 'acknowledged service.' By its motion to dismiss, the appellee city of Indianapolis is seeking now to assert that there was no service upon it, in spite of the fact that its statutory officer, whose duty and right it is to appear for it as attorney, had acknowledged that it had been served.
In Lowe v. Turpie et al., supra, it appears that a joinder in error was indorsed on the record and signed by the attorneys for the appellees. It was held that this was an appearance and no notice to appellees was required.
In Kirkpatrick, etc., Co. v. Central Electric Co. (1903) 159 Ind. 639, 65 N.E. 913, it appears that an action was brought against the appellant corporation. A summons was issued for Christian Kirkpatrick, the president of, and Elmer J. Binford, the secretary of and attorney for, the corporation. It was served upon the individuals named by reading. Afterwards the attorney for the plaintiff served a notice of the taking of depositions upon Binford, the attorney, who, in writing, acknowledged service thereof, signing himself as attorney for defendant. In the notice the cause of action was entitled 'Central Electric Company v. Kirkpatrick Construction Company.' The depositions were taken and filed. The defendant was not represented when the depositions were taken. Afterwards, in open court, there was a motion to publish the depositions in the presence of Binford, the attorney. Binford inspected and examined them and made no objection to publication. Afterwards the attorney for the defendant agreed to a continuance of the case, and there was a notation on the docket showing that the defendant appeared by Binford, its attorney, and the cause was continued. Afterwards, on the day set for trial, the plaintiff appeared by its attorney, and the defendant or its attorney did not appear, and judgment was taken by default. It was held that the conduct of the attorney constituted an appearance; that he was bound to know who the defendant was. It was not claimed that he did not have authority to appear for the defendant.
An appearance by an attorney, or the filing of a brief upon the merits, waives the necessity for notice of the appeal. Cleveland, C., C. & St. L. Ry. v. Smith (1912) 177 Ind. 524, 97 N.E. 164.
Attorneys are officers of this court and of the courts of this state. It is quite common for them to enter appearances, waive notices, or file pleadings, which are the equivalent of an appearance, for their clients, without their authority being questioned, and their right to appear is presumed. Miedreich v. Rank (1907) 40 Ind.App. 393, 82 N.E. 117. An appearance is prima facie evidence of authority to appear. Castle v. Bell et al. (1896) 145 Ind. 8, 44 N.E. 2.
Neither by the motion to dismiss the appeal, nor in any other manner is it shown that the attorney who acknowledged service was without authority to appear for the city of Indianapolis, nor is it suggested that he exceeded his authority in acknowledging service. If further evidence of the authority of the city attorney to represent the city were necessary, it is furnished by the record, which discloses that he appeared for the city in the court below and appears for it in this court upon its motion to dismiss and upon the merits. The statute authorizes and requires him to represent the city in causes pending against it, and in this respect he is in much the same situation as was the attorney for the Kirkpatrick corporation in the case above referred to. It is urged that there was no case pending against the city until service was had, and that he had no right to appear or represent it where there was no case pending. But the same contention might be made in every case where an attorney appears for a client before the client is served with notice of action, and it cannot avail. The writ was sufficient upon its face. The original return made by the sheriff was sufficient to show service, although it afterwards developed that there was, in fact, no service. Holsinger v. Dunham (1858) 11 Ind. 346. The statutory attorney for the city, a member of the bar and an officer of this court, acknowledged in writing upon the back of the notice, which is part of the records of this court, that 'service' had been had. In Chicago, L. S. & S. B. Ry. Co. v. Sanders (1917) 63 Ind.App. 586, 114 N.E. 986, 987, it is said: 'Service' has been defined as 'the delivery or communication of a pleading, notice, or other paper in a suit, to the opposite party, so as to charge him with the receipt of it, and subject him to its legal effect.' Burrill, Law Dictionary; 35 Cyc. p. 1432.' An acknowledgment of service by a party or his attorney must be construed to be an acknowledgment of legal service. When that acknowledgment is filed with the clerk of this court, by an attorney representing himself as the attorney for an appellee, it will be presumed that he has authority to represent the appellee and to acknowledge service...
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