Opinion
No. 18,931.
Filed May 1, 1958.
1. APPEAL — Jurisdiction of Appellate Court — Failure of Parties to Raise Jurisdictional Issue. — The Appellate Court must take notice of its lack of jurisdiction whether or not the question is raised by the parties as any decision on the merits may be set aside by the Supreme Court. p. 457.
2. APPEALS — Condemnation Proceedings — Jurisdiction in Supreme Court. — Under the Acts of 1893, ch. 32, p. 29, the Appellate Court had jurisdiction to determine appeals in condemnation matters, but in 1907, by statute, exclusive jurisdiction in condemnation appeals was vested in the Supreme Court, and where, as in the instant case, the appeal was erroneously filed in the Appellate Court, it will be transferred to the Supreme Court for final disposition on the merits. p. 457.
From the Lake Circuit Court, Felix A. Kaul, Judge.
Appellant, Northern Indiana Public Service Company, was successful in having certain real estate owned by appellees, Philip H. Darling and others, condemned, but from the portion of the judgment awarding damages to appellees it appeals.
Transferred to the Supreme Court. By the court in banc.
Lawyer Anderson, Lawyer, Friedrich, Petrie Tweedle, of Hammond, and George E. Hershman, of Crown Point, for appellant.
Frederick C. Crumpacker, of Valparaiso, for appellee.
This is a condemnation proceeding brought by appellant for the appropriation of a right of way for gas pipe lines across real estate of appellees. The only contested issue at the trial below was the amount of damages to be awarded.
This court must take notice of its lack of jurisdiction whether or not such question is raised by the parties. Catherwood v. McIntyre (1934), 99 Ind. App. 220, 192 N.E. 109. If this 1. court has no jurisdiction, its decision of the merits may be set aside by the Supreme Court. State ex rel. Miller v. Appellate Court (1942), 220 Ind. 538, 542, 45 N.E.2d 206.
It was formerly held that jurisdiction in this type of case was in this court under the Acts of 1893, ch. 32, p. 29, whereby appeals were to be taken to this court in all actions 2. seeking the recovery of a money judgment only and wherein the amount in controversy did not exceed a fixed amount. Indiana Natural Gas and Oil Company v. Wooters (1895), 141 Ind. 315, 40 N.E. 669, overruling The Evansville and Richmond Railroad Company v. Swift (1890), 128 Ind. 34, 27 N.E. 420; Illinois, Indiana Iowa Railway Company v. Rinehart et al. (1896), 14 Ind. App. 587, 42 N.E. 1031.
However, in 1907, § 4-214, Burns' Ind. Stat., was amended to provide that thereafter all appeals in appealable cases in certain classes shall be taken directly to the Supreme Court. One of these classes is "condemnation proceedings for the appropriation of lands for public use." § 3-1701, Burns' 1946 Replacement, reads:
"Any person, corporation or other body having the right to exercise the power of eminent domain for any public use, under any statute, existing or hereafter passed, and desiring to exercise such power, shall do so only in the manner provided in this act, . . . ."
Ewbank's Manual of Practice, Second Edition, ch. 5, § 69a, p. 135, reads:
"Appeals in condemnation proceedings for the appropriation of land to public use must be taken to the Supreme Court. These include appeals from interlocutory orders appointing appraisers in such proceedings, and from final judgments in such cases, either refusing to appoint appraisers and denying relief to the plaintiff or assessing benefits and damages. The Appellate Court decided such an appeal, after the statute now in force took effect, which had been appealed to that court before the statute was enacted (no question as to its authority having been raised), but the jurisdiction is exclusively in the Supreme Court."
A search of the digest reveals practically all these cases have gone to the Supreme Court since 1907. The following are exceptions where the lack of jurisdiction seems not to have been noticed: Ferdinand R. Co. v. Bretz (1911), 47 Ind. App. 642, 94 N.E. 1046; Halstead v. Vandalia R. Co. (1911), 48 Ind. App. 96, 95 N.E. 439; Chicago, etc., R. Co. v. Hoffman (1918), 67 Ind. App. 281, 119 N.E. 169; Northern Ind. Pub. Service Co. v. Nielsen (1952), 123 Ind. App. 199, 109 N.E.2d 442.
We conclude that this court has no jurisdiction of this appeal.
This appeal has been erroneously filed in the Appellate Court of Indiana. Under the authority of the Acts of the General Assembly of 1901, ch. 247, § 13, p. 565, being § 4-217, Burns' 1946 Repl., and under Rule 2-41 of the Supreme Court, this appeal is now ordered transferred to the Supreme Court of Indiana.
Kelley, C.J., Royse, P.J., and Bowen, Cooper and Crumpacker, JJ., concur.
NOTE. — Reported in 149 N.E.2d 702.