Lake Shore Sand Co. v. Lake Shore & Michigan Southern Railway Co.

On Petition for Rehearing.

Monks, J.

Appellant in its brief on petition for a rehearing insists that the holding in this case is in conflict with Stevens v. Templeton (1908), 170 Ind. 248, and Smith v. Gustin (1907), 169 Ind. 42.

Stevens v. Templeton, supra, was a drainage proceeding in the circuit court under the drainage act'of 1905 (Acts 1905, p. 456, §§5622-5635 Burns 1905). The court, under §5625, supra, rendered a judgment establishing the proposed drain, and approved the assessments made to pay the cost of construction. From this judgment an appeal was taken.

*4639. *462It has been uniformly held by this court under section four of the drainage act of 1881 (Acts 1881 [s.s.], p. 397, *463§4276 R. S. 1881), and section four of the drainage act of 1885 (Acts 1885, p. 129, §5625 Burns 1901), that the judgments of the court establishing the drain and approving the assessments under said sections were final judgments. Higbee v. Peed (1884), 98 Ind. 420, 424; Crume v. Wilson (1886), 104 Ind. 583, 587; Hudson v. Bunch (1888), 116 Ind. 63, 64; Perkins v. Hayward (1892), 132 Ind. 95, 102; Hoefgen v. Harness (1897), 148 Ind. 224, 226-229; Osborn v. Maxinkuckee, etc., Co. (1900), 154 Ind. 101; Pleasant Tp. v. Cook (1903), 160 Ind. 533, 537; Board, etc., v. Jarnecke (1905), 164 Ind. 658, 661-664; Mak-Saw-Ba Club v. Coffin (1907), 169 Ind. 204, 210. There was no provision for an appeal from such judgments contained in either of said drainage laws, but appeals have been uniformly taken from such judgments, either in term time, under §679 Burns 1908, §638 R. S. 1881 (Keiser v. Mills [1904], 162 Ind. 366; Goodrich v. Stangland [1900], 155 Ind. 279), or in vacation, under §681 Burns 1908, §640 R: S. 1881 (Ex parte Sullivan [1900], 154 Ind. 440; North v. Davisson [1902], 157 Ind. 610). This was proper because said judgments were final judgments of the circuit court, and an appeal therefrom was expressly authorized by said sections.

10. When, therefore, an appeal was taken from such judgments under §679, supra, it was a term-time appeal, and was governed by §§675, 676 Burns 1908, Acts 1895, p. 179, as to who should be named as appellants in the assignment of errors.

Section 5625 Bums 1905, Acts 1905, p. 456, §4, provided that “the order of the court approving and confirming the assessments and declaring the proposed work of drainage established shall be final and conclusive, unless an appeal therefrom to the supreme court be taken and an appeal bond be filed within thirty days.” It will be observed that said section did not grant or authorize an appeal from such judgment, but the right to appeal under *464some other law was recognized hy said section. Such right, however, was made to depend on the condition that an appeal therefrom be taken, and an appeal bond filed within thirty days after the rendition of the final judgment establishing the proposed drain and approving the assessments. It is evident if said provision requiring the appeal to be taken and the appeal bond filed within thirty days had been omitted from said section, that the right to take either a term-time or vacation appeal would exist under the provisions of the sections of the code of civil procedure, before mentioned, the same as from the final judgments establishing drains and approving the assessments under the drainage acts of 1881 and 1885, supra. On account of said provision requiring the appeal to be taken and the appeal bond filed within thirty days, it was held by this court in Stevens v. Templeton, supra, that-it was the intent of the General Assembly to limit appeals from judgments establishing drains and approving assessments under said drainage act of 1905 to term-time appeals under §679, supra, and that therefore the question of who shall be named in the assignment of errors as appellants in such appeals was governed by §§675, 676, supra, and that under said last-named sections the appellants in said appeal were not required to make their coparties to the judgments in the court below coappellants with them in the assignment of errors. Keiser v. Mills, supra; Goodrich v. Stangland, supra.

11. Smith v. Gustin, supra, cited by appellant, was a proceeding commenced before the board of commissioners for the establishment of a public ditch. An appeal to the circuit court was taken from a final judgment of the board establishing the ditch. On motion of appellees the proceeding was dismissed by the circuit court, and judgment rendered against the petitioners. This was a final judgment, because it finally disposed of said cause in said court. Kline v. Hagey (1907), 169 Ind. 275; Smith v. Gustin, supra; Elliott, App. Proc., §§81-85, 90. The petition*465ers perfected a term-time appeal therefrom -under §679 Burns 1908, §638 R. S. 1881. As the appeal in said case was properly taken under said section this court held that under §§675, 676 Burns 1908, Acts 1895, p. 179, appellants were not required to make all the parties against whom' judgment was rendered coappellants with them in this court. Said cases, being appeals from final judgments taken under §679, supra, of the code of civil procedure, were correctly decided, and are in no way in conflict with the opinion in this case.

7. The right to appeal from the interlocutory order made in this case is not granted by §679, supra, or any other section of the code of civil procedure, but is only authorized by section five of the act of 1905 (Acts 1905, pp. 59, 61, §933 Burns 1908), and there is nothing in said section changing the general rule stated in the original opinion as to who must be named as appellants in the assignment of errors.

The petition for rehearing is overruled.