81 Ind. App. 442 | Ind. Ct. App. | 1924
Lead Opinion
On August 15, 192S, 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 precipe for notice to appellee. The clerk issued notice
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 §61, Acts 1917 p. 154, supra. Kramer v. Miller (1917), 65 Ind. App. 127. This section, as originally enacted, after providing that an award by less than the full board if not reviewed by the full board, and that an-award of the full board should be conclusive and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
Generally speaking, §§675 and 681 Burns 1914 (§1, Acts 1895 p. 176, and §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.
Sections 675 and 681 Burns 1914, supra, provide three methods of taking appeals in civil cases. Section 675 Burns 1914, supra, provides for what is known as term-time appeals. Section 681 Burns 1914, supra, provides two methods of taking vacation appeals. Under this section, a vacation appeal in civil cases can be taken by “the service of 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 proceedings in the suit, or so much 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 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 (1907), 168 Ind. 654, “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
Statutes limiting the time in which an appeal can be taken are jurisdictional and mandatory. Williams v. Long (1900), 130 Cal. 58, 62 Pac. 264, 80 Am. St. 68; Daley v. Anderson (1897), 7 Wyo. 1, 48 Pac. 839, 75 Am. St. 870, Elliott’s Appellate Proc. 111, 128; Ewbank’s Manual (2d ed.) §§101, 107. See Daugherty v. Payne (1911), 175 Ind. 603; Barney v. Elkhart County Trust Co. (1906), 167 Ind. 505.
Time for taking an appeal cannot be extended by agreement of the parties. Flory v. Wilson (1882), 83 Ind. 391; Holloran v. Midland R. Co. (1891), 129 Ind. 274. 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 (1908), 41 Ind. App. 301. “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 (1895), 142 Ind. 142; 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
Keeping these general principles in mind let us determine the force and effect of the act of 1917, Act 1917 p. 154, supra, amending §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 §61, a term-time appeal was not submitted or referred to the court until thirty days after the appeal was perfected, that vacation appeals were not submitted until thirty days after notice, but that, after said amendment in 1917 (Acts 1917 p. 154, supra) 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 one hundred eighty days from the final disposition of the cause, but an appeal from the Industrial Board must be taken within thirty days. Section 693 Burns 1914, §639 of the Code, as amended in 1885, Acts 1885 p. 219, provides that appeals in civil cases unless otherwise ordered by the court shall “be regarded as submitted for decision at the expiration of thirty days from the date of service of notice upon the appellee of the taking of the appeal,
The provision that appeals from the Industrial Board shall be “submitted” upon the date when filed must be construed as meaning that the clerk shall immediately refer such appeals to the court for determination, subject, of course, to the rules of the court in regard to the filing of briefs. The word “submission”, when applied to a controversy or action in court, means to refer it to, or to place it before, the court for determination. Black’s Law Dict.; Anderson Law Dict.; Miller v. Wolf (1884), 63 Iowa 233, 18 N. W. 889; Board of Education v. Board, etc. (1909), 150 N. C. 116, 61 S. E. 724.
Since no submission can take place until all of the parties are before the court, it follows that a cause in this court on appeal taken in vacation cannot be submitted when the appellee has had no notice of the appeal. The legislature knowing that the law requires notice before an appeal could be submitted for determination, certainly did not intend to provide
We are strongly impressed with the idea that it was the intention of the legislature to provide for compensation with expedition and with a minimum of legal procedure. Union Sanitary Mfg. Co. v. Davis (1917), 63 Ind. App. 548. As was said in Carl Hagenback, etc., Shows Co. v. Leppert (1917), 66 Ind. App. 261, where the provisions of a statute apparently conflict, it is the duty of the court to reconcile them, if possible, so as to sustain the act and carry out its purpose.
In the trial court a cause is submitted, that is, referred to a jury or to the court for determination of the matters in dispute after, and only after, the parties are in court and when the cause is ready for determination. Likewise on an appeal to this court, the cause cannot be submitted or referred to this court for determination until all the parties to be affected by such appeal are in court.
The appeal is therefore dismissed for want of jurisdiction.
Concurrence Opinion
Concurring Opinion.
In a nut-shell, this case is as follows: The record was filed in this court September 14, 1923, at which time, appellants filed praecipe for notice which was issued, and thereafter, to wit, on September 20, 1923, served. Appellants’ briefs were filed November 17, 1923. Appellee has filed its motion to dismiss the appeal for the reason that the briefs were not filed in time, contending that as the record was filed September 14, 1923, under the statute, the cause was submitted on that date, and that the sixty days time within which appellants might file their briefs expired on November 13, 1923. Appellants contend that they had sixty days from September 20, 1923, the date of service of notice, and that, therefore, the briefs were in time.
Section 61 of the Workmen’s Compensation Act, Acts 1917 p. 154, §8020s2 Burns’ Supp. 1921, provides that either party may appeal from the award of the Industrial Board within thirty days from the date of such award, and that such appeal shall be governed by terms
Rule 21 of the Supreme and Appellate Courts expressly provides that appellants shall have sixty days after submission within which to file briefs. It is suggested that there could be no submission until after notice was served, but the statute expressly provides a method of serving notice before the transcript is filed, and knowing that the cause must, under the statute, be submitted on the day the transcript is filed, it was incumbent upon appellants to serve their notice accordingly. Appellants’ time for filing briefs expired November 13, 1923, and the same not being filed until November 17, 1923, appellee’s motion to dismiss the appeal must be sustained. As to the merits attempted to be presented by this appeal, see In re Raynes (1917), 66 Ind. App. 321, 118 N. E. 387.