Johnson v. Miller

43 Ind. 29

• Court: Indiana Supreme Court
• Decided: May 15, 1873
• Status: Published

Opinion

Buskirk, J.

The appellee has filed a written motion to set aside the submission of this cause. The cause was tried at the October term, 1871, of the Madison Circuit Court. The transcript was filed in the clerk’s office of this court, on the 27th day of November, 1871. The cause was submitted, on the default of the appellee, on the 29th day of May, 1872. The appeal was not taken under sec. 555 of the code, 2 G. & H. 271, during the term, and consequently it was necessary that the appellee.should receive notice of the appeal. Nor was the appeal taken under the first clause of sec. 556, by serving notice on the adverse party or his attorney, and also on the clerk, but it was taken under the last clause of said section, by procuring a transcript and filing the same in this court. In such case a notice must be issued by the clerk of this court and served on the appellee, or his attorney of record in the court below; or when the notice cannot be served upon the appellee or his attorney, and it is made to appear that the appellee is a non-resident of the State, this court may order that notice of the pendency of the appeal be given in some newspaper printed and published in this State, for three weeks successively; after which the court shall proceed in all respects as if the defendant had been served with process. Sec. 557.

It does not appear that the appellee ever received any notice of the pendency of the appeal. In such case the appellee could not be called and defaulted. It results that the cause was improperly submitted.

The submission is set aside, at the costs of the appellants, of which the clerk will give them notice.