Opinion
No. 16,865.
Filed November 14, 1941.
1. APPEAL — Final Judgments — Interlocutory Orders Excepted — Appeals to Both Supreme and Appellate Courts. — Except as to interlocutory orders, appeals may be taken to the Supreme Court only from final judgments, and appeals to the Appellate Court are subject to the same statutory limitation. p. 654.
2. APPEAL — Final Judgments — Conclusion of Law as to Taxation of Costs Not a Judgment. — A conclusion of law to the effect that the costs in the case should be taxed against a named party, and it is so ordered, cannot take the place of a judgment from which an appeal would lie. p. 654.
3. APPEAL — Dismissal — Judgment From Which to Appeal Not Shown. — Where the transcript shows a finding of facts and conclusions of law but no judgment rendered thereon, there was no judgment from which to appeal, and the appeal must be dismissed. p. 654.
From the Allen Superior Court; George H. Leonard, Judge.
Action between James A. Botteron and Nannie L. Windell involving the title to certain real estate. From the action of the court in quieting the title of Nannie L. Windell, James A. Botteron appealed.
Appeal Dismissed. By the court in banc.
Hoffman Hoffman, of Fort Wayne, for appellant.
Hugh Kennerk and McAdams Lincoln, all of Fort Wayne, for appellee.
This is an action involving the title to certain real estate; the appellant, James A. Botteron, claiming title thereto as the surviving husband and heir of the decedent, Georgia E. Vail, and the appellee, Nannie L. Windell, claiming title to the same real estate as the surviving mother and heir of said decedent. Whether a judgment for divorce granted appellant from Georgia E. Vail was valid was the question giving rise to the respective claims. There was a trial by the court; and upon a request of both parties, the court made a special finding of facts and stated conclusions of law thereon quieting the appellee's title to the real estate in question against the appellant. An examination of the record fails to disclose any final judgment rendered. The transcript shows the finding of facts and conclusions of law but no judgment rendered thereon.
Except as to interlocutory orders, § 2-3218, Burns' 1933, § 2-3201, Burns' 1933, provides that appeals may be taken to the Supreme Court only from final judgments. 1. Appeals to the Appellate Court are subject to the same limitation. § 4-209, Burns' 1933.
It appears that the court's conclusion Number 5 is to the effect that the costs in this case should be taxed against the appellant, James A. Botteron, and it is so ordered. This 2. conclusion of law cannot take the place of a judgment. Bryant v. Barger (1939), 106 Ind. App. 245, 18 N.E.2d 965.
There being no judgment from which to appeal, the appeal must necessarily be dismissed. Board, etc. v. Hutson 3. (1913), 55 Ind. App. 447, 103 N.E. 1090.
Appeal dismissed.
NOTE. — Reported in 37 N.E.2d 269.