75 Ind. App. 68 | Ind. Ct. App. | 1921
This is an action by appellee against appellant to recover the statutory penalty, provided in §§5780, 5781 Burns 1914, Acts 1885 p. 151. The complaint is in a single paragraph, and is based on an alleged delay in transmitting a telegram from Kendall-ville, Indiana, to Indianapolis, Indiana. Appellant filed two paragraphs of answer, designated as third and fourth, to each of which appellee filed a demurrer for want of facts, which was sustained. It thereupon elected to stand upon its said third and fourth paragraphs of answer and each of them, refusing to plead further. Following this election and refusal, the court rendered judgment against it for the statutory penalty of $100 and costs. Appellant is now prosecuting this appeal on an assignment of errors based on the action of the court in sustaining appellee’s demurrer to each of said paragraphs of answer.
After the transcript in this cause was filed in the Supreme Court, from which it .was transferred for want of jurisdiction, appellee entered a special appearance and filed a motion to dismiss this appeal based on the following grounds stated therein: “Appellee recovered a judgment in the Superior Court of Marion County, Indiana, on the 16th day of January, 1919, and appellant prayed a term-time appeal to the Supreme Court of Indiana from the judgment on the 16th day of January, 1919, but filed no bond. No vacation appeal was taken, or any notice served on appellee, or appellee’s attorneys, of an intention to take a vacation appeal.
The judgment is therefore reversed, with instructions to overrule appellee’s demurrer to each the third and fourth paragraphs of appellant’s answer, and for further proceedings consistent with this opinion.