ON PETITION FOR REHEARING. Appellees, on petition for rehearing, still fail to make the distinction between an attempted appeal and an actual appeal. There was no appeal to the circuit court, only an attempted appeal, which, having failed, there was no jurisdiction in the circuit court, and any proceedings therein, including the attempted judgment which the court undertook to render, were absolutely void, the same as if no appeal had been attempted. The appeal to this court was not for the purpose of reviewing a judgment but for the purpose of setting aside a void judgment.
Appellee relies upon the City of Indianapolis v. L.C.Thompson Mfg. Co. (1907), 40 Ind. App. 535, 81 N.E. 1156, but that was a case of an actual appeal, and in which the court 4. exercised jurisdiction and entered a valid judgment. The statute under which the proceeding was prosecuted provided that such judgment should be final and there was an attempt to appeal for the purpose of reviewing the judgment. The court properly dismissed the appeal. The *Page 424 appeal was not for the purpose of determining the jurisdiction of the court or of the setting aside a void judgment. The case ofCity of New Albany v. Lemon (1925), 198 Ind. 127,149 N.E. 350, clearly points out the statute under which the appeal to the circuit court must be taken. That action was by injunction for the purpose of enjoining the enforcement of a void judgment, and the court properly held that such an action would lie. If it may be said that there was some confusion in the reasoning of the learned judge who prepared the opinion in reaching a right result, the law pertinent to the question involved is thus stated in his able work known as Ewbank's Manual of Procedure, § 289: "A judgment entered in a case where the court has no jurisdiction of the subject-matter is of no validity whatever, and a void judgment may be attacked by an appeal as well as by an original proceeding. But where the trial court was without jurisdiction an appellate court has no jurisdiction on appeal for any purpose except to decide that fact." Numerous authorities are cited to sustain the rule of law. Again, under § 265, he states the rule to be that "where the court has permitted a cause to be presented for adjudication, the fact that it erroneously entertains jurisdiction, and pronounces judgment on the merits of a cause over which it has no jurisdiction, or wrongfully decides that it has no jurisdiction and dismisses the action, when it should have proceeded to determine the rights of the parties, is not sufficient cause of issuing an extraordinary writ to control its action, because such error may be corrected by an appeal. It is firmly settled that an appeal may be maintained from a judgment that is wholly void," citing authorities. Were the judgment here involved a final valid judgment, there could be no appeal therefrom under the statute, but, being a void judgment, there was an appeal therefrom for the sole purpose of *Page 425 determining the jurisdictional question, and of setting such void judgment aside.
There was included in the proceeding before the common council, in addition to the installation of the curb and gutter, the construction of a twelve-inch sewer for drainage purpose 5, 6. in connection with the improvement. We do not need to determine whether the two improvements might properly be combined in one proceeding. It is sufficient for us to say that if the two constructions could properly be so combined in one proceeding as a street improvement, then what we have said in the original opinion, and above in this opinion on rehearing, concerning the validity of the appeal applies so far as a challenge of the amount of the assessment is concerned. If it be said that the construction of the sewer was not properly a part of the street improvement, and that such sewer should have been constructed under the provisions of § 10569 Burns 1926, then there is provision in that section for an appeal from the decisions of the common council as to the amount of the assessments made for the construction of sewers. It is provided, however, in that section that the owner of any land assessed may contest the amount of such assessment by filing in the circuit court, or superior court, of the county in which the city is located, a verified petition within ten days from the completion of the assessment roll. No such steps were taken in this case as to the sewer, and therefore, the statute not having been complied with, the circuit court was without jurisdiction to determine any question as to the amount of the assessments of the sewer. In this case, however, the challenge was not as to the amount of the assessments, but of their validity because of the failure of the common council to follow the preliminary steps provided by the statute in order that a valid assessment might be made. The question of such validity cannot *Page 426 be presented by an appeal from the act of the common council, there being no provision for an appeal for such purpose.
Rehearing denied.
Dausman, J., absent.