Lake Shore & Michigan Southern Railway Co. v. City of Whiting

94 N.E. 326, 175 Ind. 330, 1911 Ind. LEXIS 42

• Court: Indiana Supreme Court
• Decided: March 14, 1911
• Docket: No. 21,600
• Status: Published

Opinion

Monks, J.

This proceeding was commenced by appellee city in 1903 to condemn land for a public park under the act of 1891 (Acts 1891 p. 116, §§4307-4312 Bums 1901).

The judge of the Lake Circuit Court appointed three commissioners to assess the damages. Afterwards, on July 8, 1903, appellant filed in the office of the city clerk objections and exceptions to the proceedings. On July 14, 1903, said commissioners filed their report of the amount of damages accruing to each owner, as required in §4308, supra. On the same day said appellee accepted said report, and appropriated the amount of money necessary to pay said damages, as provided in §§4309, 4310, supra. On July 20, 1903, appellant appealed to the court below under §4310, supra, where such proceedings were had that the cause was appealed to this court.

The transcript was filed in this court on January 10, 1910. Said appellee has filed a motion to dismiss this appeal, on the ground that “ no appeal could be taken in this case except from a final judgment.”

1. It is conceded by the parties in their briefs that a finql judgment has not been rendered in this case. The general rule is that appeals can be taken from final judgments only. Elliott, App. Proc. §80.

2. Counsel for appellant, however, insist that section five of the “ act concerning proceedings in the exercise of eminent domain ” (Acts 1905 p. 59, §933 Burns 1908) gives the right of appeal from the interlocutory order appointing appraisers, and that appellant “ is entitled to the benefit of this additional remedy in the matter of appeal.” It is a sufficient answer to this contention that this appeal is not from the order of the court appointing appraisers. They were appointed and had filed their report more than a year before said act of 1905 took effect.

Section twelve of said act of 1905 (§940 Bums 1908), and section 272 of “ an act concerning municipal corporations ” (Acts 1905 pp. 219, 410, §9016 Burns 1908), which last-named act contains sections providing for condemnation of land for public parks, expressly provide that the repealing provisions in said sections shall not affect pending proceedings, but that they shall be concluded and judgment rendered as if said act had not been passed. It is evident therefore that §933, supra, authorizing appeals from interlocutory orders appointing appraisers, has no application to this appeal.

As there is no statute allowing an appeal in proceedings like this, except from final judgments, it follows that this appeal must be dismissed. Appeal dismissed.