Tate v. Hamlin
| Decision Date | 24 September 1895 |
| Docket Number | 17,611 |
| Parties | Tate v. Hamlin et al |
| Court | Indiana Supreme Court |
Petition to Modify Opinion Denied Nov. 19, 1895, Reported at 149 Ind. 94 at 103.
From the Marion Superior Court.
Submission set aside.
S. M Shepard, J. E. McCullough, H. N. Spaan, F. Knefler and J. F. Berryhill, for appellant.
W. V. Rooker, L. C. Walker and W. D. Bynum, for appellees.
A special appearance has been entered in this cause by the appellees for the sole purpose of making a motion by them to dismiss this appeal. The reasons assigned in the motion are: (1) That this court is without jurisdiction of the appellees; (2) said appeal was taken without filing a bond, and without notice to these appellees; (3) no notice of appeal was ever issued to or served by any officer of this court, nor was any return of service of notice of appeal ever made to this court by a person authorized by law to make returns to this court.
The appeal, it is conceded, is not a term time appeal, but was taken, if at all, after the close of the term at which the judgment appealed from was rendered. It is therefore a conceded proposition that notice to the appellees is necessary before this court can acquire jurisdiction over them to hear and determine the same. Appellant's learned counsel, however, contend that the appellees have been duly notified of the appeal as the law directs.
On the filing of the transcript, with the assignment of errors thereon, the clerk of this court issued a notice, directed to the sheriff of this court, commanding him to notify the appellees, naming them, or their attorneys of record, naming them also, that on the 8th day of May, 1895, the appellant had filed in his said office a transcript of the record and proceedings in the cause, naming it, and that at the expiration of thirty days from the service of that writ said appeal would be submitted to said Supreme Court. The return of the sheriff of Marion county states that the writ came to his hands May 9, 1895, on which day he served it by reading the same to the attorneys therein named.
Affidavits filed with the motion show that appellees now reside in the city of Indianapolis, and have ever since the litigation begun, and have not been served with any notice of the appeal, and that their attorneys on whom the process was served had been discharged as far back as 1890, and that appellant knew that fact.
It is contended on behalf of the appellees that if no legal notice of the appeal has been given, the same has not been perfected, and hence no appeal has been taken within the time limited therefor; and as no appeal can be now taken the appeal must be dismissed.
On the other hand, the appellant contends that filing the transcript, with an assignment of errors thereon, within the time limited, perfects the appeal. It is conceded that the transcript and the assignment of errors thereon were filed in time.
The section of the code that regulates ordinary appeals after the term at which the judgment is rendered reads as follows: "After the close of the term at which the judgment is rendered, an appeal may be taken by the service of a notice in writing on the adverse party or his attorney, and also on the clerk of the court in which the proceedings were had, stating the appeal from the judgment or some specific part thereof; or such appeals may be taken by procuring from the clerk of the court a transcript of the record and proceeding in the suit, or so much thereof as is embraced in the appeal, and filing the same in the office of the Clerk of the Supreme Court, who shall endorse thereon the time of filing, and issue a notice of the appeal to the appellee."
Two methods of giving notice of an appeal are provided for in this section. If the language of the first clause of the section were to be construed according to its strict letter regardless of other sections concerning appeals to this court, we should be constrained to hold that the appeal therein referred to could be taken by giving the notices therein specified without doing anything else. But it has been held by this court that that part of the section must be construed along with the other sections on the subject, and when so construed it means that it is essential to such an appeal that the transcript must be filed within the time limited therefor in other sections. Johnson v. Stephenson, 104 Ind. 368, 4 N.E. 46. It is also well settled by the decisions of this court that the filing of the transcript with a proper assignment of error thereon within the time limited for taking an appeal perfects the appeal without the service of notice on the appellees. Harshman v. Armstrong, 43 Ind. 126; Johnson v. Stephenson, supra; Wright v. Manns, 111 Ind. 422, 12 N.E. 160.
Counsel for appellees, however, contends that, "the giving of notice is just as essential to the perfecting of an appeal as the filing of the transcript and assignment of errors, and all must be done within the time limited for perfecting the appeal," and cite Holloran v. Midland R. W. Co., 129 Ind. 274, 28 N.E. 549, in support of that proposition.
The notice there involved was not a notice to the appellees, but was a notice to a co-party. While that appeal, like the one before us, was attempted to be taken after the close of the term, yet it did not belong to exactly the same class of appeals, in all respects. The judgment in that case was rendered on May 15, 1888, the transcript filed on November 15, following; and no notice was ever given to the co-party to the judgment, who did not appeal, as required by section 647, Burns' R. S. 1894 (635, R. S. 1881). On March 20, 1891, nearly three years after the judgment had been rendered, the appellee filed a motion in this court to dismiss the appeal. The appellants thereupon procured the written consent of the nonappealing co-parties to appear in this court and decline to join in the appeal, and the appellants filed the same in the clerk's office, and also asked leave to amend their assignment of errors so as to make such nonappealing co-parties parties to the appeal in this court. This court there said: "The appeal cannot be maintained by filing in the clerk's office of this court a written appearance of the judgment defendant not made a party to the appeal, and his refusal to join in the appeal after nearly three years have elapsed from the time of the rendition of final judgment in the circuit court." And the appeal was dismissed for those reasons.
That is far from deciding that notice to the appellee is essential to the perfecting of the appeal, nor is that case in conflict with those cited above, to the effect that filing the transcript with an assignment of errors thereon perfects the appeal without notice to the appellees. The appeal, therefore, in the case before us was duly taken. The question remains whether there has been legal notice of the appeal served on the appellees, and if not, what effect that has on the appeal.
The section quoted provides for two kinds of notice as already observed, either one of which, at the option of the appellant, may be given. The first is an unofficial notice, and the second kind is an official notice. The first is an unofficial notice because there is no provision that it shall be issued by an officer or served by an officer, while the second is required to be issued by an officer, namely, by the clerk of this court, and section 7801, Burns' R. S. 1894 (5833, R. S. 1881), requires the sheriff of this court or his deputy to serve such notice. The appellant in this case elected to rely alone upon an official notice. He could have written out and served the other kind of notice himself, one on the clerk of the court and the other on the adverse party or his attorney. ...
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