Terre Haute & L. Ry. Co. v. Indianapolis & N.W. Traction Co.

• Decision Date: 11 October 1906
• Docket Number: No. 20,880.,20,880.
• Citation: 78 N.E. 661,167 Ind. 193
• Court: Indiana Supreme Court
• Parties: TERRE HAUTE & L. RY. CO. v. INDIANAPOLIS & N. W. TRACTION CO.

167 Ind. 193

78 N.E. 661

TERRE HAUTE & L. RY. CO.

v.INDIANAPOLIS & N. W. TRACTION CO.

No. 20,880.

Supreme Court of Indiana.

Oct. 11, 1906.

Appeal from Circuit Court, Montgomery County; Jere West, Judge.

Condemnation proceedings by the Indianapolis & Northwestern Traction Company against the Terre Haute & Logansport Railway Company. From an order fixing the point of crossing, the defendant appeals. Transferred from Appellate Court under section 1337u, Burns' Ann. St. 1901. Dismissed.Jno. G. Williams and Thomas & Foley, for appellant. Pierre Gray, for appellee.

GILLETT, J.

Appellee, an interurban railroad company, instituted this proceeding against appellant, a steam railroad company, to obtain by condemnation the authority to cross at grade the right of way and tracks of the latter, at a point in Montgomery county. Appellant appeared to the proceeding, and filed objections to the proposed point of crossing. There was a hearing on said objections before the Montgomery circuit court, which resulted in an order, entered on the 25th day of June, 1904, fixing the point of crossing at the place proposed in appellee's instrument of appropriation. Appellant filed a motion for a new trial, which was overruled, and an exception was reserved. Such proceedings were afterwards had that appraisers were appointed, who returned an award of damages in favor of appellant, and, within the time allowed by law, the latter filed exceptions to the award. The record does not show whether there has been a final judgment on such exceptions. It appears that, after the overruling of its motion for a new trial, appellant prayed an appeal to the Appellate Court, which was in terms granted, but no bond was given, and the transcript was not filed and errors assigned in the Appellate Court until the 21st day of June, 1905.

It is insisted by counsel for appellee that an appeal from an order fixing the point of crossing is an appeal from an interlocutory order, and that, as an appeal was not perfected by appellant as required by the statute governing appeals from such orders, a dismissal should follow. The condemnation proceeding in question was had under section 1 of the act of March 3, 1903 (Acts 1903, p. 125, c. 59; section 5464a, Burns' Ann. St. Supp. 1905). This act, as directly appears from its provisions, is supplementary to the act of March 11, 1901 (Acts 1901, p. 461, c. 207; section 5468a et seq., Burns' Ann. St. 1901). The evident design of section 1 of the act of 1903 was to make more particular provision concerning interurban, suburban, and street railroads seeking to cross steam railroads at grade than had existed under section 5 of the act of 1901, which related to the subject of condemnation by interurban and other railroads of like character of lands and rights and interests therein as against proprietors generally. In the main, the framework of the procedure as it now exists is found in the section last mentioned, and there is no doubt that said sections are to be considered as if they were one enactment. The provision concerning the right of appeal from the award is given by the act of 1901 in substantially the same language as is found in the steam railroad condemnation statute (section 5160, Burns' Ann. St. 1901), and this, under well-settled rules of construction, gives the right to set up in the exceptions matters of both law and fact going to the regularity of the appropriation; the effect of the appeal being to lodge the proceeding in the trial court, where it is governed, at least for the most part, by the ordinary rules of procedure in civil actions. McMahon v. Cincinnati, etc., R. Co., 5 Ind. 413;Swinney v. Fort Wayne, etc., R. Co., 59 Ind. 205;Lake Shore, etc., R. Co. v. Cincinnati, etc., R. Co., 116 Ind. 578, 19 N. E. 440;Midland R. Co. v. Smith, 125 Ind. 509, 25 N. E. 153. Section 1 of the act of 1903 gives to the company whose right of way is sought to be crossed the right to file objections to the point of crossing, within five days after the delivery of the instrument of appropriation, and to have a hearing thereon, and from a decision of the court or judge adverse to its objections it may appeal “in the same manner and under the same conditions and restrictions as provided by law in civil cases.” Such an appeal is different from that which is taken by exceptions to the award, and was evidently intended to bring into review before a court of error the law questions arising under the objections to the location. It is very plain that the act contemplates that the effect of such appeal shall not be to suspend the proceeding, and, as the order is an intermediate one, we take it that it was the legislative intent that an appeal therefrom should be governed by the provisions of the Code concerning appeals from interlocutory orders, unless it can be said that the order is in legal effect a final judgment.

The general rule is that a judgment, to be final, must dispose of the case as to all of the parties, and finally dispose of the subject-matter of the litigation. Champ v. Kendrick, 130 Ind. 545, 30 N. E. 635;Home, etc., v. Globe, etc., 145 Ind. 174, 44 N. E. 191;Keller v. Jordan, 147 Ind. 113, 46 N. E. 343; 2 Ency. of Pl. & Pr. 72....