21 Ind. App. 115 | Ind. Ct. App. | 1898
The judgment from which this appeal is brought was rendered against the appellant, who was the plaintiff, on the 31st day of December, 1896. The transcript of the record with the appellant’s assignment of errors, was filed in the office of the clerk of this court on the 29th day of December, 1897, and thereupon, on the same day, the clerk issued notice of the appeal. The return of the sheriff of Wells county showed service of this notice on the 30th of December, 1897, upon Sharpe & Sturgis and Dailey, Simmons & Dailey, attorneys of record for the appellees, but did
By section 652, Burns’ R. S. 1894 (640, R. S. 1881), it is provided: “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.” It is provided by section 645, Burns’ R. S. 1894 (633, Horner’s R. S. 1897), that appeals in all cases must be taken within one year from the time the judgment is rendered.
To have a perfected appeal, a transcript must be filed in this court. For taking appeals in vacation two methods are prescribed by section 652 quoted above. To perfect an appeal by the first method, the notices provided for must be given, yet this alone will not constitute the appeal, but the transcript must be filed in this court. Johnson v. Stephenson, 104 Ind. 368. It is provided by rule two of this court, that when
When the second method for taking an appeal provided for in section 652, supra, is pursued, the appeal is perfected by the filing of the transcript with a proper assignment of errors thereon within the year, without the service of notice on the appellees. Tate v. Hamlin, 149 Ind. 94, 97, 105. In that case it was also held that service of the official notice provided for in the second branch of said section 652 upon the attorneys of the appellees and not upon the appellees, was without authority of law, and void, and was not legal notice of the appeal to the appellees; and that notice served only on the attorneys of the appellees was ineffectual notice within the meaning of the second clause of said rule thirty-five. In that case, for reasons stated in the opinion, which were regarded as affording an excuse for the appellant, who, pursuing a practice which had theretofore been tolerated, procured service on the appellee’s attorney, but not upon the appellee, the Supreme Court set aside the submission and directed the issuing of another notice. It was said, “A failure to comply with the rule in appeals hereafter in this respect, and a failure to take action in appeals heretofore taken within ninety days after
By a statute enacted in 1897 (Acts 1897, p. 277, section 640, Horner’s K. S. 1897), it was attempted to amend said section 652 so as to permit the service of the official notice upon the attorneys of record. This statute of 1897 was held to be invalid, because of defectiveness of its title, in O’Mara v. Wabash R. Co., 150 Ind. 648. The attorneys for the appellant, who do not rely upon the validity of that statute, caused the official notice herein to be issued pursuant to its provisions: This would seem to afford some excuse for the appellant, if the requirement of the second clause of said section 652 for the giving of notice can still be complied with. He sought service pursuant to a statute which had not been held invalid. He was not inexcusably negligent. Section 663, Burns’ R. S. 1894 (651, Horner’s B. S. 1897), provides: “Whenever it shall appear to the supreme court, by satisfactory proof, that the appellee in a cause appealed after the close of the term is not a resident of this State, and that a notice of the appeal cannot be served upon the attorney of record in the court below, the court may order that notice of the pendency of the appeal be given in some newspaper printed and published in this State for three weeks successively; after which the court shall proceed in all respects as if the defendant had been served with process.”
In rule seventeen of this court it is provided, that “if the appellees are not residents of the State, the appellant shall obtain a form of notice from the clerk for publication. * * * Provided, That when the appel
In Tate v. Hamlin, supra, it was held, that when the appellee is shown to be a nonresident of the State, and that service of notice cannot be got on his attorney of record, then it is shown that neither the unofficial notice provided for in said section 652, which, to be complete, must be served upon the clerk of the trial court and the attorney of the adverse party, nor the official notice, which must be served on the appellee himself, can be given, though notice can be served on the clerk; and that then, that is, when neither kind of notice provided for in said section 652 can be given, “and not till then, is the appellant entitled to an order for publication of notice.”
In the case before us, notwithstanding the affidavit that the appellees are nonresidents of the State, there is no sufficient reason for notice by publication; for it appears that notice could be served on the attorneys of record of the appellees. Shaefer v. Nelson, 17 Ind. App. 489. After the notice issued by the clerk had become ineffectual, because of the service thereof upon the attorneys alone, the appellant could not obtain the service of an alias notice to the appellees, they being nonresidents, and he could not obtain publication. He sought to bring in the appellees by giving the unofficial notice provided for in the first clause of said section 652. This notice was dated July 8, 1898, and seems to have been induced by the motion to dismiss. O’Mara v. Wabash R. Co., supra, holding the statute under which he had proceeded to be invalid, was not then decided.
We must either hold the notice of July 8, 1898, sufficient, or we must dismiss the appeal; for the ap
It seems to be intended in the statute and contemplated in the rules of this court, that the unofficial notice provided for in said section 652 shall serve as a method of taking a vacation appeal, which is perfected by the filing of the transcript within sixty days thereafter; and another method of giving notice is provided for where the transcript is filed without the previous giving of the unofficial notice. Service of the unofficial notice is a method of taking an appeal, and not a method of giving notice of an appeal already taken. It seems also to be meant by the statutes that where the appeal is taken by giving the unofficial notice, such notice must be given within the year for taking an appeal. Unless we can say that the unofficial notice may be substituted by the appellant for the official notice, and that an appellant may file the transcript in this court within the year, and after the year may bring the appellee into court by the unofficial notice instead of the official one, we cannot aid the appellant by any indulgence on the ground of excusable neglect or failure. The appellees must in some legal method be brought into court. The provision that the appeal must be taken within a year after judgment, applies as well to appeals brought under
To hold that instead of the notice provided for in the second branch (the official notice), where it is required by the terms of the statute, resort may be had to the unofficial notice provided for in the first branch, would seem to be unwarranted, for it is not for the court to determine the method of giving the notice where the legislature has prescribed a method. The statute binds the court as well as the appellant. Under all the circumstances of this case, we would be disposed still to permit the appellant to seek service and to thereby bring in the appellees, if it were possible to give such aid. The appeal is dismissed.