Kennon v. Shull

9 Ind. 154

• Court: Indiana Supreme Court
• Decided: May 29, 1857
• Status: Published

Opinion

Per Curiam.

One of the principal questions in this case is, whether the Supreme Court will adhere, to the decision in the case of Langdon v. Applegate, 5 Ind. R. 327. The Court determines to adhere to the ruling in that case. It has already been several times followed

(1). We do not perceive that the slight verbal inaccuracy in Judge Hovey’s quotation from the Louisiana constitution, affects the force of his argument; nor was the decision in the case put upon that, but the language of our own constitution.

J. L. Ketcham,-1. Coffin, and R. L. Walpole, for the appellants. L. Barbou/r and A. G. Porter, for the appellees.

Another question made is whether, when an appeal is taken from the Common Pleas to the Circuit Court, where the cause would stand for trial de novo, and a statute is passed depriving the latter Court of jurisdiction of such appeal, the cause, or the appeal, should be dismissed.

The Court holds that the appeal should be dismissed. The case stands in that Court as an unauthorized appeal (2).

A point is made about exceptions below; but the Court thinks, under the circumstances shown by affidavit to exist in this case, the Court should not be influenced by it in the decision of the cause.

The judgment below is reversed with costs. Cause remanded, with instructions to dismiss the appeal.

See Rogers v. The State, 6 Ind. R. 31; Wilkins v. Miller, ante, 100; Littler v. Smiley, ante, 116.

Touching these points counsel for the appellees cited Wiscart v. Dauchy, 3 Dal. 327; 3 Pet. 425; Yeaton v. The United States, 5 Cranch 281; Schooner Rachel v. The United States, 6 id. 329; 2 East. Cr. Law, 576, Jones’s case; 1 W. Bl. 451, Miller’s case; 17 and 20 Pick., under the head “Appeals.” Const. of Louisiana, articles 118, 119.

Langdon v. Applegate, 5 Ind. R. 327; Walker v. Caldwell, 4 La. Ann. R. 297; Duverge v. Salter, 5 id. 94; and the statutes of Louisiana, from. 1847 to 1854, were reviewed in argument.