Newman v. Railway officials And Employees' Accident Association
| Decision Date | 08 January 1896 |
| Docket Number | 1,612 |
| Parties | NEWMAN v. RAILWAY OFFICIALS AND EMPLOYEES' ACCIDENT ASSOCIATION |
| Court | Indiana Appellate Court |
Petition for rehearing overruled April 3, 1896
From the Marion Superior Court.
Judgment affirmed.
F Knefler and J. S. Berryhill, for appellant.
F. M Finch and J. A. Finch, for appellee.
The appellant brought this action against the appellee, in the Marion Superior Court, upon a policy of insurance issued by it to appellant's husband, insuring him, for her benefit, against death from "external, violent and accidental means." A demurrer for want of facts was filed to the complaint and overruled, whereupon appellee filed an answer in four paragraphs, three of which were in confession and avoidance, and to each of which demurrers were filed and overruled. A reply of general denial was filed to these special answers. Upon the issues formed, the cause was tried by jury and a verdict returned in favor of appellant, upon which the court rendered judgment, and the appellee appealed to the general term, where the judgment was reversed and the court at special term directed to sustain the demurrer to the complaint. From the judgment of reversal this appeal is taken.
The only specification of error assigned by the appellant is that "The court in general term erred in reversing the judgment of the court in special term."
The first insistence of appellant is, "That the court in general term had no jurisdiction of the person of the appellant herein, Lida Newman."
The record discloses that on the 16th day of December, 1892, the court in special term rendered judgment on the verdict of the jury; that on the 22d day of the same month appellee filed its motion and causes for a new trial, which motion was overruled by the court on the 6th day of February, 1893, sixty days time being given to prepare and file bill of exceptions, and an appeal granted to the general term. On the 21st day of March, 1893, appellee filed its bill of exceptions. The next entry in the cause is one made by the court in general term, wherein it recites that on the 27th day of June, 1893, the appellant (the appellee here) filed an abstract of the record and its "assignment of errors."
The contention of counsel for appellant is, that inasmuch as more than 140 days elapsed from the time the appeal was prayed for and granted until appellee filed its assignment of errors in the general term, no notice of such appeal having been served on appellant, the general term acquired no jurisdiction over her.
True, if the court in general term did not acquire jurisdiction over the person of the appellant, Lida Newman, the judgment of reversal is not binding against her, and the judgment in her favor rendered by the court in special term must stand.
It must be conceded that the right of appeal is regulated by statute, and that all, not merely a part, of the acts designated by the statute to be done must be performed or the appeal is not perfected.
"The right to appeal is granted upon the condition that all of the several designated acts shall be performed, and not upon the condition that any number of the entire series of acts designated, less than the whole, shall be performed by the party asserting the right." Elliott App. Proced., section 128.
This court indulges the presumption that the judgment and proceedings of the court below are regular and correct, and a party appealing therefrom is required to present a record which shows affirmatively that such proceedings and judgment are wrong.
We deem it unnecessary, at this time, to consider or decide just what steps the statute requires to be taken by a complaining party in order to take an appeal from the special...
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