Smythe v. Boswell

Citation20 N.E. 263, 117 Ind. 365
Case DateFebruary 19, 1889
CourtSupreme Court of Indiana

117 Ind. 365
20 N.E. 263

Smythe
v.
Boswell et al.

Supreme Court of Indiana.

February 19, 1889.


Appeal from circuit court, Benton county.


N. W. Bliss and Merrick & Travis, for appellant. Chase & Chase, for appellees.

Elliott, C. J.

The judgment from which this appeal is prosecuted was rendered on the 5th day of September, 1887. On the 11th day of October, 1888, the transcript was filed in the office of the clerk of this court. The transcript contains an assignment of errors, and a joinder in error, but there was neither a transcript nor an assignment of errors filed in this court until the 11th day of October, 1888, more than 13 months after the final judgment was entered. The appellees move to dismiss the appeal. Affidavits and counter-affidavits were filed by both parties, but we think that the utmost effect that can be given the affidavits of the appellant is that they tend to prove that her counsel believed that there was a tacit agreement extending the time for taking the appeal beyond the year allowed by law. On the other hand, the affidavits filed by the appellees tend very strongly and satisfactorily to prove that there was no foundation even for this belief. They tend, indeed, to show that the appellees insisted upon the filing of the transcript long before the year expired. There is, at all events, not the slightest ground for inferring that the appellees or their counsel acted in bad faith, or that they wrongfully deceived the appellant or her counsel.

The motion to dismiss the appeal must be sustained. An appeal must be perfected within the time limited by the statute. It is true that the judiciary is an independent department of government, exclusively invested by the constitution with one element of sovereignty, and that this court receives its essential and inherent powers, rights, and jurisdiction from the constitution, and not from the legislature. Kuntz v. Sumption, 19 N. E. Rep. 474; Little v. State, 90 Ind. 338;Houston v. Williams, 13 Cal. 24.

This fundamental principle leads, as we are satisfied, to the proposition that, if an appeal within the time limited by law should be prevented by the fraud of an appellee or his counsel, the court might, notwithstanding the statutory limitation, grant an appeal upon a proper application. This power, to

[20 N.E. 264]

put the doctrine in a somewhat different form, exists not by virtue of legislation, but by virtue of the inherent right of every superior court to maintain its dignity and...

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40 practice notes
  • Riordan v. Horton
    • United States
    • United States State Supreme Court of Wyoming
    • March 9, 1908
    ...doing indirectly what could not be done directly. No errors not now properly before the court can be considered. (Smyth v. Boswell (Ind.), 20 N.E. 263; Jarvis v. Chase County (Neb.), 97 N.W. 831; Deuch v. Seaside Lodge, 26 Ore. 385; 2 Ency Pl. & Pr., 239-245; Crawford v. Kansas City, 45 Kan......
  • Tourkow v. Hoover, No. 18345
    • United States
    • Indiana Court of Appeals of Indiana
    • October 15, 1952
    ...never be exercised except when appellant presents a meritorious case, in which he has been free from negligence. Smythe v. Boswell, 1889, 117 Ind. 365, 20 N.E. 263; Hutts v. Martin, 1892, 131 Ind. 1, 30 N.E. 698, 31 Am.St. 412; Bank of Westfield v. Inman, 1892, 133 Ind. 287, 32 N.E. 885; Ta......
  • Chicago, I.&L. Ry. Co. v. Priddy, No. 9072.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 25, 1915
    ...accident, mistake, or oversight of the appealing party or his attorneys. In support of this contention appellant cites Smythe v. Boswell, 117 Ind. 365, 20 N. E. 263;Tate v. Hamlin, 149 Ind. 94, 41 N. E. 356, 1035;Hanley v. Mason, 40 Ind. App. 180, 81 N. E. 610;Bank v. Inman, 133 Ind. 287, 3......
  • Noble County Council v. State ex rel. Fifer, No. 29203
    • United States
    • Indiana Supreme Court of Indiana
    • April 4, 1955
    ...of free institutions require the absolute integrity and freedom of action of courts. Little v. State, 90 Ind. 338; Smythe v. Boswell, 117 Ind. 365, 20 N.E. 263; Ex parte Griffiths, 118 Ind. 83, 20 N.E. 513 (3 L.R.A. 398); State ex rel. [Hovey] v. Noble, 118 Ind. 350, 21 N.E. 244 (4 L.R.A. 1......
  • Request a trial to view additional results
40 cases
  • Riordan v. Horton
    • United States
    • United States State Supreme Court of Wyoming
    • March 9, 1908
    ...doing indirectly what could not be done directly. No errors not now properly before the court can be considered. (Smyth v. Boswell (Ind.), 20 N.E. 263; Jarvis v. Chase County (Neb.), 97 N.W. 831; Deuch v. Seaside Lodge, 26 Ore. 385; 2 Ency Pl. & Pr., 239-245; Crawford v. Kansas City, 45 Kan......
  • Tourkow v. Hoover, No. 18345
    • United States
    • Indiana Court of Appeals of Indiana
    • October 15, 1952
    ...never be exercised except when appellant presents a meritorious case, in which he has been free from negligence. Smythe v. Boswell, 1889, 117 Ind. 365, 20 N.E. 263; Hutts v. Martin, 1892, 131 Ind. 1, 30 N.E. 698, 31 Am.St. 412; Bank of Westfield v. Inman, 1892, 133 Ind. 287, 32 N.E. 885; Ta......
  • Chicago, I.&L. Ry. Co. v. Priddy, No. 9072.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 25, 1915
    ...accident, mistake, or oversight of the appealing party or his attorneys. In support of this contention appellant cites Smythe v. Boswell, 117 Ind. 365, 20 N. E. 263;Tate v. Hamlin, 149 Ind. 94, 41 N. E. 356, 1035;Hanley v. Mason, 40 Ind. App. 180, 81 N. E. 610;Bank v. Inman, 133 Ind. 287, 3......
  • Noble County Council v. State ex rel. Fifer, No. 29203
    • United States
    • Indiana Supreme Court of Indiana
    • April 4, 1955
    ...of free institutions require the absolute integrity and freedom of action of courts. Little v. State, 90 Ind. 338; Smythe v. Boswell, 117 Ind. 365, 20 N.E. 263; Ex parte Griffiths, 118 Ind. 83, 20 N.E. 513 (3 L.R.A. 398); State ex rel. [Hovey] v. Noble, 118 Ind. 350, 21 N.E. 244 (4 L.R.A. 1......
  • Request a trial to view additional results

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