Summary
In Cochran v. Sloan, Auditor (1934), 99 Ind. App. 408, 192 N.E. 772, the appellant attempted to appeal from an order sustaining a motion to dismiss the cause.
Summary of this case from Williams v. WilliamsOpinion
No. 15,227.
Filed November 20, 1934.
1. APPEAL — Decisions Reviewable — Final Judgments — Sustaining Motion to Dismiss. — Where trial court sustained a motion to dismiss but failed to enter a judgment of dismissal, there was no final judgment from which an appeal would lie. p. 410.
2. APPEAL — Decisions Reviewable — Appeal Prematurely Taken — Dismissal. — Where an appeal is prematurely taken before final judgment, the cause will be dismissed. p. 410.
From Knox Superior Court; William J. Calverly, Judge.
Action by Arthur R. Cochran against Henley C. Sloan, as auditor, and others, wherein the trial court sustained defendant's motion to dismiss, and plaintiff appealed. Appeal dismissed. By the court in banc.
Shake Kimmell, for appellant.
Samuel M. Emison, Padgett Padgett, Ramsey Grayson, Floyd L. Young, and Alsop Alsop, for appellees.
Appellant brought this action against the appellees to enjoin the publication in the Vincennes Post of a legal notice of claims filed and to be presented to the board of commissioners of Knox county, Indiana, for allowance at its January, 1933, session. Upon the filing of the complaint, which was verified, and a bond conditioned as required by law, the court before which the action was pending, issued a restraining order without notice prohibiting the publication of the notice in question. This order remained in force and effect from the date of its issuance and service on December 28, 1932, until the 30th day of January, 1933, when, upon motion of appellees theretofore filed, it was dissolved. On March 20, 1933, the appellees (defendants below) filed motion to dismiss the cause, and, pending the ruling on the motion to dismiss, the appellant (plaintiff below) offered to file what he denominates a supplemental complaint, to the filing of which the appellees objected, and, under instruction of the court, reduced their objections to writing. On June 5, 1933, these objections were sustained and the appellant excepted; the motion of appellees to dismiss the cause was then sustained and appellant excepted. On July 1, 1933, appellant filed his motion for a new trial, which motion was overruled on October 2, 1933, and appellant excepted. The transcript of the record then discloses the following action: "And now the defendants move for judgment on the finding of the court, which motion is by the court sustained.
"It is therefore considered, ordered and adjudged by the court that the defendants recover of and from the plaintiff their costs herein laid out and expended." This appeal was then taken, the appellant assigning errors as follows: "(1) The court erred in sustaining appellees' objections to the filing of a supplemental complaint by this appellant. (2) The court erred in sustaining appellees' motion to dismiss said cause. (3) The court erred in overruling appellant's motion for a new trial."
Appellees have filed a motion to dismiss this appeal for the following reasons: "(1) That at the time this appeal was perfected, the time for the commission of the acts alleged to have been threatened and sought to be enjoined had expired. (2) This appeal was not taken within 180 days from the dismissal of said cause. (3) The appeal presents only mooted and abstract questions of law."
We find it unnecessary to pass upon the questions presented by appellees' motion to dismiss as there is another reason which the record affirmatively discloses that requires a dismissal of 1. this appeal. It appears that no final disposition of the cause has been made in the court below. Although the record, as heretofore stated, does show that the court sustained the defendants' motion to dismiss the cause, it wholly fails to show that any order dismissing the cause was entered or that any judgment of dismissal was rendered.
The right of appeal is statutory and our statute (Sec. 2-3201, Burns Ind. Stat.'s Ann. 1933, § 471, Baldwin's 1934) provides for an appeal from all final judgments, except in certain actions of a class not involved here. There are some exceptions to this general rule provided by the statute cited, where appeals are authorized from certain interlocutory orders, but this case does not fall within any of those exceptions. See Sec. 2-3218, Burns Ind. Stats. Ann. 1933, § 490, Baldwin's 1934.
It makes no difference how decisive may seem the ruling of a trial court as indicative of what the final judgment will be, for until there is such a final judgment no appeal can be 2. properly taken, as appeals lie from final judgments only, except as otherwise provided by statute. Thomas, Admr. v. The Chicago and Erie Ry. Co. (1894), 139 Ind. 462, 39 N.E. 44; O'Neill v. Johnson (1911), 175 Ind. 705, 95 N.E. 229. Elliott's App. Proc., Sec. 83.
As the transcript does not show that a final judgment was rendered, the appeal was prematurely taken, and the same should be, and is dismissed.