52 Ind. App. 492 | Ind. Ct. App. | 1912
Motion by appellee to dismiss this appeal, on the ground that appellant has not complied with the statute authorizing a term-time appeal and has failed to perfect a vacation appeal.
In Michigan Mut. Life Ins. Co. v. Frankel (1898), 151 Ind. 534, 537, 50 N. E. 304, the court said: “The statute provides the steps which must be taken in order to effect a term-time appeal, and thereby relieve the appellant from ghpng the notice required by law in vacation appeals. The penalty of the appeal bond must be fixed and the surety named and approved by the court during the term at which the final judgment is rendered, and the bond, conditioned ac
In Ashley v. Henderson (1904), 32 Ind. App. 242, 69 N. E. 469, this court, quoting from Elliott, App. Proc. §246, said: “To perfect a term-time appeal the following steps must be taken: ‘(1) An appeal must be prayed during the term at which the judgment was rendered, and it must be granted during that term. (2) The penalty of the bond must be fixed and the surety named during the term at which the judgment was rendered. (3) The bond must be filed during that term and approved by the court, or the court must during that term fix a time within which the bond shall be filed, and it must be filed and approved by the court within the time designated. (4) The transcript must be filed in the office of the Clerk of the Supreme Court within sixty days after the filing of the bond.’ ” See, also, Buskirk’s Practice 61; 2 Works’ Practice §1088; Thornton & Ballard’s Practice §639, note 1; Ewbank’s Manual §175. Among other cases requiring the sureties to be named at the term in which the judgment is rendered are the following: McKinney v. Hartman (1896), 143 Ind. 224, 227, 42 N. E. 681; Thompson v. Connecticut Mut. Life Ins. Co. (1894), 139 Ind. 325, 328, 38 N. E. 796; Holloran v. Midland R. Co. (1891), 129 Ind. 274, 275, 28 N. E. 549; Hartlep v. Cole (1889), 120 Ind. 247, 251, 22 N. E. 130.
This court in Yanthis v. Kemp (1907), 40 Ind. App. 649, 82 N. E. 926, held that to perfect a, term-time appeal the same must be prayed and granted, the penalty of the bond must be fixed, and the sureties named by the court during
In Daugherty v. Payne (1911), 173 Ind. 603, 95 N. E. 233, the doctrine of waiver by failure to object, as announced in Price v. Huddleston, supra, was held to be erroneous. Continuing, the court said: “A party is not required to assist his adversary in perfecting his appeal, and waives nothing on that question by mere silence, unless he is required to speak.” It is said in Yanthis v. Kemp, supra, and in several other cases, that an appeal bond is for the benefit of the appellee. This is true to the extent that the bond insures to appellee the collection of his judgment; but, manifestly, the bond is also for the benefit of the appellant, in that it enables him to appeal without notice, and protects his property from seizure and sale, upon execution pending a final determination on appeal.
The cases of Price v. Huddleston, supra, and Yanthis v. Kemp, supra, are not in harmony with the other cases herein cited, and especially with Daugherty v. Payne, supra, which is the latest expression of the Supreme Court on this subject.
It would be possible to distinguish the case at bar, since the record does not show that appellee was present in court, at the time the appeal was prayed and granted, but this would only be postponing the day when the rule must be declared and the conflict in the cases cleared up. "Where a question of practice only is involved, it is not so important how the question is decided, as that it should be decided.
In this case there was a failure to perfect a term-time appeal, and the motion must he sustained.
Appeal dismissed.
Note. — Reported in 100 N. E. 83. See, also, under (1) 2 Cyc. 842.