Thompson v. A.J. Thompson Stone Co.

• Decision Date: 30 April 1924
• Docket Number: No. 11836.,11836.
• Citation: 81 Ind.App. 442,144 N.E. 150
• Parties: THOMPSON et al. v. A. J. THOMPSON STONE CO.
• Court: Indiana Appellate Court

81 Ind.App. 442

144 N.E. 150

THOMPSON et al.

v.A. J. THOMPSON STONE CO.

No. 11836.

Appellate Court of Indiana.

April 30, 1924.

Appeal from Industrial Board.

Proceedings under the Workmen's Compensation Act by Hazel King Thompson and others, claimants, opposed by the A. J. Thompson Stone Company, employer. The Industrial Board denied an award, and claimants appeal. Appeal dismissed.Henley & Henley, of Bloomington, for appellants.

Joseph W. Hutchinson and Howe S. Landers, both of Indianapolis, for appellee.

McMAHAN, J.

On August 15, 1923, the Industrial Board made an award denying appellants' compensation, and September 14, they filed a transcript of the proceedings and an assignment of errors with the clerk of this court. No appeal bond was filed and no notice of the appeal was served prior to the filing of the transcript. At the time of filing the transcript appellants filed a præcipe for notice to appellee. The clerk issued notice on that day, and on September 20 the same was served by the sheriff of this court on the attorney who represented appellee before the Industrial Board. The clerk entered an order of submission September 14, as required by section 61 of the Workmen's Compensation Act. Acts 1915, p. 410, as amended by Acts 1917, p. 155 (section 8020s2, Burns' Supp. 1921). Appellants filed their briefs November 17, and on November 20 appellee filed a motion to strike appellants' briefs from file and to dismiss the appeal, because the briefs were not filed within 60 days after submission, as required by rule of the court.

[1] The record presents a preliminary and a more serious question than that presented by the motion to dismiss, a question as to whether we have jurisdiction of the appeal. This we must consider, though not raised by the parties. If we have no jurisdiction of the appeal, the question as to when the briefs were filed is of no importance, and need not be considered. If we should assume jurisdiction by ruling on the motion to dismiss, that might be accepted as an implied holding that an appeal from the Industrial Board may be taken by filing the transcript and assignment of errors with the clerk of this court and thereafter causing notice to be served on the appellee.

The only authority for taking appeals from an award of the Industrial Board is found in said section 61. Kramer v. Miller, 65 Ind. App. 127, 115 N. E. 597. This section as originally enacted, after providing that an award by less than the full board, if not reviewed by the full board, or an award of the full board, should be conclusive and binding as to all questions of fact, provided that either party to the dispute might “within thirty days from the date of the award appeal to the Appellate Court for errors of law under the same terms and conditions as govern appeals in ordinary civil actions,” and that the board might of its motion certify questions of law to this court for decision and determination. This section was materially amended in 1917 (Acts 1917, p. 155), and now provides that:

“All such appeals *** shall be submitted upon the date filed in the Appellate Court, shall be advanced upon the docket of said court, and shall be determined at the earliest practicable date, without any extensions of time for filing briefs.”

Generally speaking sections 675 and 681, Burns' 1914 (section 1, Acts 1895, p. 179, and section 640, R. S. 1881) fix the terms and conditions which govern appeals in civil actions.

A casual reading of the section authorizing an appeal from the Industrial Board would seem to indicate that all of the provisions of the Civil Code relating to appeals in civil cases apply to appeals from the Industrial Board, and unless there is something indicating otherwise we would have no hesitancy in so holding.

[2] Sections 675 and 681, supra, provide three methods of taking appeals in civil cases. Section 675 provides for what is known as term time appeals. Section 681 provides two methods of taking vacation appeals. Under this section a vacation appeal in civil cases can 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,” and thereafter filing the transcript and assignment of errors with the clerk of the Supreme Court. A vacation appeal in such cases may also 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 indorse thereon the time of filing, and issue a notice of the appeal to the appellee.” Under the first method of perfecting a vacation appeal the notice of appeal must be served before the transcript is filed, and it may be served on the party or the attorney who represented him in the lower court. A like notice must be served on the clerk of the trial court. If such attorney has been discharged and no longer has authority to represent his former client and the party serving has knowledge of such fact, such notice served on the attorney is of no avail. Walker v. Johnson, 62 Ind. App. 550, 113 N. E. 314;Thompson v. Newsom, 52 Ind. App. 444, 100 N. E. 772;Masters v. Abbitt, 51 Ind. App. 429, 99 N. E. 815;Rose v. Owen, 37 Ind. App. 125, 76 N. E. 412;Richardson v. Pate, 93 Ind. 423, 47 Am. Rep. 374. If the transcript has been filed and notice has not theretofore been served, the last clause of section 681, supra, requires that the clerk shall issue notice to the appellee. This notice must be served on the appellee. Serving this notice on the attorney has been held not sufficient to confer jurisdiction over the person of the appellee. Tate v. Hamlin, 149 Ind. 94, 41 N. E. 356, 1035;Abshire v. Williamson, 149 Ind. 248, 48 N. E. 1027;Bozeman v. Cale, 139 Ind. 187, 35 N. E. 828;Kreuter v. English Lake Land Co., 159 Ind. 372, 65 N. E. 4; Thompson v. Newsom, supra.

[3][4] The right of appeal is statutory, and a party desiring to avail himself of such privilege must comply with the statute authorizing the appeal. Kramer v. Miller, supra. As was said in Brown v. Brown, 168 Ind. 654, 80 N. E. 535:

“The right of appeal is given by statute, or it does not exist. In acquiring jurisdiction over a particular cause this court does not exercise its inherent powers, but must exact a compliance with statutory provisions.”

Since no presumption of jurisdiction attaches to appellate tribunals, the burden rests upon the appellant to bring himself within a reasonable construction of the statute authorizing an appeal. Hite v. Hinsel, 39 La. Ann. 113, 1 South. 415.

[5] Statutes limiting the time in which an appeal can be taken are jurisdictional and mandatory. Williams v. Long, 130 Cal. 58, 62 Pac. 264, 80 Am. St. Rep. 68;Daley v. Anderson, 7 Wyo. 1, 48 Pac. 839, 75 Am. St. Rep. 870; Elliott's Appellate Proc. 111, 128; Ewbank's Manual (2d Ed.) §§ 101, 107. See Daugherty v. Payne, 175 Ind. 603, 95 N. E. 233;Barney v. Elkhart, etc., Trust Co., 167 Ind. 505, 79 N. E. 492.

[6][7][8] Time for taking an appeal cannot be extended by agreement of the parties. Flory v. Wilson, 83 Ind. 391;Holloran v. Midland Ry. Co., 129 Ind. 274, 28 N. E. 549. If the parties cannot by agreement extend the time in which an appeal can be taken, the failure of the appellee to move a dismissal on the ground that the appeal was not perfected in time will not confer jurisdiction. Where an appellant, in a vacation appeal, has taken no steps within the time fixed for taking such appeal to bring all the necessary parties before the appellate tribunal, the court on its own motion will dismiss the appeal for want of jurisdiction. Abshire v. Williamson, supra.

“The serving of the notice and filing of the proof are essential to the jurisdiction of the appellate court.” National Surety Co. v. Button, 41 Ind. App. 301, 83 N. E. 644.

“It is a fundamental maxim in our jurisprudence that before any court can proceed to adjudicate upon any subject-matter, it must first acquire jurisdiction over all persons whose rights will be necessarily affected by such adjudication.” Vordermark v. Wilkinson, 142 Ind. 142. 39 N. E. 441; Abshire v. Williamson, supra.

The Supreme Court of Ohio in speaking on this subject said:

“But a proceeding in error is an independent action adversary in character, and the court cannot acquire jurisdiction of the case until the defendant is legally brought before it.” Craig v. Welply, 104 Ohio St. 312, 136 N. E. 143.

[9] Keeping these general principles in mind, let us determine the force and effect of the act of 1917, amending section 61 of the Workmen's Compensation Act.

If the second method of perfecting vacation appeals-that is, by filing the transcript in the clerk's office and thereafter causing notice to be issued and served on the appellee-is not applicable to appeals from the Industrial Board, this appeal must be dismissed. It is important to keep in mind that prior to the amendment of said section 61 a term time appeal was not submitted or referred to the court until 30 days after the appeal was perfected, that vacation appeals were not submitted until 30 days after notice, but that after said amendment in 1917 the statute granting the right of appeal provided that the appeal should be “submitted upon the date filed in the Appellate Court, shall be advanced upon the docket of said court and shall be determined at the earliest practicable date, without any extensions of time for filing briefs.”

The Legislature evidently intended there should be no unnecessary delay in the time of taking or in the determination of such appeals. Appeals in civil cases can be taken within 180 days from the final disposititon of the cause, but an appeal from the Industrial board must be taken within 30 days. Section 693, Burns' 1914 (section 693 of the Code, as amended in 1885 [Acts 1885, p. 219]), provides that appeals in civil cases unless otherwise ordered by the...