Yhe Louisville, New Albany & Chicago Railway Co. v. Etzler
| Decision Date | 26 June 1891 |
| Docket Number | 432 |
| Citation | 34 N.E. 669,4 Ind.App. 31 |
| Parties | THE LOUISVILLE, NEW ALBANY AND CHICAGO RAILWAY COMPANY v. ETZLER, EXECUTRIX |
| Court | Indiana Appellate Court |
From the Washington Circuit Court.
Motion to dismiss appeal overruled.
E. C Field, C. C. Matson and W. S. Kinnan, for appellant.
H Morris, for appellee.
This was an action commenced by George J. Etzler against the appellants, to recover damages for the killing of one animal and the injuring of another by the locomotive and cars of the appellant, being an action under the statute, section 4025 et seq., R. S. 1881, the complaint alleging that the animals went upon the railroad track at a point where it was not securely fenced.
After the commencement of the action, the appellee, in August 1889, filed a supplemental complaint and a second paragraph of complaint, alleging in each the death, in 1889, of the plaintiff, said George J. Etzler, testate, at Washington county, Indiana, and that the appellee was the duly appointed, qualified and acting executrix of his will, said supplemental complaint being, like the original complaint, based upon the statute, and said second paragraph alleging said killing and said injury to have been done through negligence.
Thus, the appellee became a party and continued the action under the provisions of section 271, R. S. 1881.
Issues were formed, the trial of which, by the court, resulted in a finding for the appellee. From the judgment thereupon rendered for the appellee this appeal was taken.
The judgment was rendered on the 2d of January, 1891, and the transcript was filed in the office of the clerk of this court on the 6th of May, 1891, the appeal being perfected as provided in section 640, R. S. 1881, being section 635 of the civil code.
The appellee has moved to dismiss the appeal, assigning as reasons that the appeal bond was not filed within ten days after judgment; that the transcript was not filed within ten days after the appeal bond was filed and within twenty days after judgment; and that the transcript was not filed within thirty days after judgment.
The motion to dismiss raises the question whether the appeal could be taken under the provisions relating to appeals in the civil code, or should have been taken in the manner specially provided in sections 2454 and 2455, R. S. 1881 being sections 228 and 229 of the act relating to decedents estates, the motion being...
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Louisville, N.A. & C. Ry. Co. v. Etzler
... ... Etzler against the Louisville, New Albany & Chicago Railway Company for injuries to stock. Plaintiff died, and the action was continued by ... ...
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