39 Ind. App. 399 | Ind. Ct. App. | 1907
In this cause appellees have filed a motion to dismiss the appeal, averring as reasons therefor: (1) That the appeal is premature, being upon an iterlocutory judgment for costs; (2) that the record in said cause does not exhibit a final judgment. The complaint was in two paragraphs. Demurrers were filed to the same and overruled, whereupon affirmative answers- were filed to each paragraph, to which answers appellant, plaintiff below, demurred, and upon submission the demurrers were carried back and sustained to the complaint. Appellant asked and obtained leave to amend, but afterwards withdrew the request to amend, whereupon the court entered judgment as follows:
*401 “It is therefore considered and adjudged by the court that the defendants, Joe Flesher and Jerry Flesher, do have and recover from the plaintiff, Leonard Neyens, their costs and charges in and about this cause laid out and expended.”
Whereúpon appellant prayed an appeal. This.is the only judgment shown by the record.
In the case of Western Union Tel. Co. v. Locke, supra, the appellant prosecuted his appeal from an order directing it to produce a written instrument, and the appellee denied its right to appeal from such order. It was there held that an appeal will only lie from a final judgment except such
In the ease of James v. Lake Erie, etc., R. Co., supra, appellee filed a demurrer to the amended complaint of the appellant, which demurrer was sustained, and to which ruling of the court appellant excepted. The only error assigned was the ruling of the court upon said demurrer. The final entry of the proceedings in the court below was as follows: “Comes now the parties by counsel, and the demurrer to the complaint is sustained by the court, to which ruling of the court the plaintiff (appellant) excepts and refuses to plead further, and prays an appeal to the Supreme Court, which prayer the court grants.” Appellee contended that this was not a final judgment, and that the appeal should be dismissed, and this contention was sustained by the Supreme Court. The only substantial difference between the entry in the case last cited and the case at bar is, that in the case now before us the entry adds a recovery for costs, but, as we have heretofore shown, a
In the case of Thomas v. Chicago, etc., R. Co., supra, appellant, as administrator*, sued appellee for damages. The cause was tried, and at the close of appellant’s evidence appellee demurred to the evidence, and the-court sustained this demurrer. Appellant appealed from the ruling on this demurrer. There was no judgment rendered on the ruling. Upon appeal appellee insisted that the appeal should be dismissed. The court held that, since there was no final judgment, the motion to dismiss should be sustained, and in discussing this question the court said: “Here there was no judgment rendered for or against anybody, nor did the order sustaining the demurrer -to the evidence make a final disposition of the cause. It was a mere interlocutory order liable to be changed before the final disposition of the cause. ‘The general rule,’ says Judge Elliott, ‘that appeals lie only from final judgments is so essential to the orderly administration of justice, and has so much to commend it, that it is with reason that statutory provisions creating exceptions are construed with some strictness.’ ” On page 465 the court continues: “Here, also, the ruling on the demurrer to the evidence clearly indicated what the ultimate judgment must be if the ruling was adhered to and remained unchanged, yet such ruling remained subject to change or modification until the final judgment'should be rendered on the demurrer. After judgment on the demurrer is rendered there can be no change of the ruling on the demurrer. The final judgment, had the circuit court adhered to its ruling on the demurrer,
In the case of People v. Severson, supra, the appeal was taken upon the following entry: “This cause coming to be heard upon the demurrer to the declaration filed in said cause, after arguments of counsel and due deliberation by the court, said demurrer is sustained, whereupon the plaintiffs elect to stand by their declaration. Therefore it is considered by the court that the defendant do have and recover of the plaintiff his costs and charges in this behalf expended and have execution therefor.” It was contended by the defendant in error that this was not a final judgment, and therefore plaintiff in error could not appeal therefrom. This contention was sustained by the court, and in discussing this question the court said: “The form of a final judgment for the defendant, whether upon verdict or upon demurrer to the declaration or replication is: ‘Therefore it is considered that said (plaintiff) take nothing by his suit and that said (defendant) do go thereof without day.’ Archbold, Forms and Entries, 129, 299. In the judgment entry in this case there is neither the nil capiat, nor the eat inde sine die, nor any equivalent words, or words which can be held to import the dismissal of the suit or the discharge of the defendant. * * * ‘A judgment which merely awards costs to the defendant, without more, is not a final judgment. In order to have that character it must profess to terminate and completely dispose of the action. Hence, if for the defendant, the final judgment must state that he is dismissed without day, or that it is considered that the plaintiff take nothing by his suit, or otherwise refer to the disposition' made of the subject-matter.’ ” On page 498 the court continues, as follows: “ ‘That a judgment is final, is not to be determined inferentially from the mere fact that costs and execution thereof are adjudged against one of the parties. The costs are regulated by statute and follow as an incident to final judg
In the case of Sprick v. Washington County, supra, it appeared from the record that plaintiff had moved for judgment on the petition and answer. The motion was overruled. The entry on this motion was as follows: “It is considered, ordered, and adjudged by the court that said defendants do have and recover judgment in this action against said plaintiffs, and that said defendants recover of and from said plaintiffs their costs, and that execution issue therefor.” From this ruling and this entry appeal was prayed. The question arose whether this was a final judgment. The court say: “The judgment is that the defendants recover of the plaintiffs their costs. This seems to be the only true import of the language used; and therefore it is not a final judgment pronounced by the court upon the matter contained in the record. It is not in the language of such judgment. Bouvier, in his Law Dictionary, says a judgment is ‘the conclusion of law upon facts found, admitted by the parties, or upon their default in the course of the suit.’ * * * Again, it is said that the final judgment is, that ‘it is considered by the court that the plaintiff take nothing by his writ, and that the defendant go hence without day.’ ”
In the case of Warren v. Shuman, supra, appellant brought suit against appellees for the recovery of land. Trial was had by a jury, and verdict for the defendant returned. The entry reciting the final decree was as follows: “The jury returned the following verdict, to wit:
The case of Lisle v. Rhea, supra, was a suit by appellant against appellee for the taking of certain personal property. The cause was submitted to the court without a jury, and the court made a finding for the defendant. Upon this finding the following entry was made: “It is therefore considered by the court, that the defendant recover of said plaintiff his costs, and charges by him in this behalf, laid out and expended, and that he have thereof execution.” The question was presented as to whether this was such a judgment as might be appealed from. The court in holding that it was not, used this language: “Judgment is here given the defendant for the costs of suit; but for anything here adjudged, the plaintiff is yet in court by no means hindered from proceeding in the cause. The judgment should have been thus entered: ‘Therefore it is considered by the court, that said plaintiff take nothing by her writ,
In the case of Young v. Stonebreaker, supra, suit was brought by respondents against appellant; demurrer was filed to the amended petition, and the demurrer sustained, as shown by the following entry: “Now here come said parties by their attorneys, and said defendant’s attorney files his demurrer to the amended petition, and, on argument of counsel, said demurrer is sustained. It is therefore considered by the court that said defendant recover of William Young, administrator of Nancy Jackson, deceased, the costs and charges in this behalf incurred, to be taxed according to law, and that execution issue therefor.” The court held this was not a final judgment and appeal would not lie.
In the case of Smarr v. McMaster, supra, trial was had, upon issues joined, by a jury. The jury returned a verdict for the defendant. The entry thereon proceeds as follows: “Whereupon, on motion of defendant, it is considered by the court that said defendant, Anne E. McMaster, administratrix of the estate of Samuel H. K. McMaster, deceased, have and recover of the plaintiff, Eliza E. Smarr, the costs of this suit, as well in this court as in the court below, and that the defendant may have her writ of execution against said plaintiff for the costs aforesaid.” The court in holding that this was not a final judgment from which an appeal would lie, used this language: “The record in this cause shows that in the lower court a verdict was found for the defendant, and the judgment rendered against the plaintiff for costs, Tut no final determination' of the right of the parties in the action.’ ” Erom all that appears here the cause is still pending in the lower court. Similar en-, tries, with similar rulings thereon, are found in the cases of Riddle v. Yates, supra; Scott v. Burton, supra; Hancock v. Metz, supra; Eastham v. Sallis, supra; Higbee v.
Attention has been called to the case of Starkey v. Starkey (1906), 166 Ind. 140, and the case of Matter v. Campbell (1880), 71 Ind. 512, as enunciating a different doctrine from that here expressed. A careful examination of these cases, however, demonstrates that such is not the case. In the former case, the question was not so much what constituted a final judgment as whether the judgment rendered was final as to all the defendants. The opinion, as reported, purports to set out the final judgment in haec verba, and if it was as shown in said reported opinion it might with reason he held that it set a new standard by which final judgments should he measured. The record filed in said cause, however, discloses that the whole of the judgment is not set out, hut that the nil capiat was inadvertently omitted. The judgment as shown hy the record is: “Wherefore it is considered and adjudged by the court that the plaintiffs take nothing hy their complaint herein,” etc. Here follows the part quoted in the opinion. This is a full and complete final judgment, and in harmony with the ruling in this case.
The decision in Matter v. Campbell, supra, presents a somewhat different case. In that case appellant filed his complaint seeking to enjoin appellee from collecting certain taxes of appellant. A temporary injunction was issued. Afterwards appellee filed answer in two paragraphs, the first a general denial, the second setting up affirmative matter. Appellant demurred to the second paragraph. This demurrer was overruled and excepted to, and appellant refused to plead further, hut chose to stand on his demurrer, and judgment was rendered dissolving the temporary injunction and giving appellee his costs. The question presented hy appellee’s counsel, as stated in the opinion, was that “the judgment or order in the case at bar was not such an one as the appellant can appeal from.”
Appeal dismissed.