644. (632.) Appeal to supreme court-Proviso.-628. Appeals may be taken from the circuit courts and superior courts to the supreme court, by either party, from all final judgments, except in actions originating before a justice of the peace or mayor of a city, where the amount in controversy, exclusive of interest and costs, does not exceed fifty dollars: Provided, however, That this exception shall not apply to prohibit an appeal in cases originating before a justice of the peace or mayor of a city, involving the validity of an ordinance passed by an incorporated town or city. The party obtaining judgment shall not take an appeal after receiving any money paid or collected thereon.

An appeal only lies from judgments that make a final disposition of a cause, except as otherwise provided by statute. Reese v. Beck, 9 Ind. 238; Davis v. Davis, 36 Ind. 160; Northcutt v. Buckles, 60 Ind. 577; Taylor v. Board, 120 Ind. 121; Champ v. Kendrick, 130 Ind. 545.

An appeal will not lie from an order made to sell the real estate of a decedent. Staley v. Dorsett, 11 Ind. 367; Crews v. Cleghorn, 13 Ind. 438.

An appeal may be taken from an order to sell lands under sections 646-7, R. S. 1881. Simpson v. Pearson, 31 Ind. 1.

Refusal of the court to confirm the report of a trustee is not such a judgment as can be appealed from. Thiebaud v. Dufour, 57 Ind. 598.

Nor any order in a guardianship before final settlement. Pfeiffer v. Crane, 89 Ind. 485.

Nor from an order appointing commissioners to make partition. Davis v. Davis, 36 Ind. 160; Kern v. Maginniss, 41 Ind. 398; Rennick v. Chandler, 59 Ind. 354; Jackson v. Myers, 120 Ind. 504.

Nor from an order directing the production of writings to be used on the trial. Western Union Co. v. Locke, 107 Ind. 9.

Nor from an order declaring the forfeiture of a bail bond. McGuire v. State, 119 Ind. 499.

Nor from an order directing a stay of proceedings in a cause. Taylor v. Board, 120 Ind. 121.

An appeal may be taken from any order that makes a final disposition of a cause. Covey v. Neff, 63 Ind. 391; Hill v. Shannon 68 Ind. 470; Matter v. Campbell, 71 Ind.

512.

An appeal can not be taken by persons when no judgment is rendered for or against them. Jager v. Doherity, 61 Ind. 528.

If the demurrers of several defendants to the complaint are overruled and judgment rendered, and one defendant has a cross-complaint pending, no appeal lies from such judgment. Champ v. Kendrick, 130 Ind. 545.

If a new trial is granted on an application after term, an appeal lies. Hines v. Driver, 89 Ind. 339; Harvey v. Fink, 111 Ind. 249.

If a sale of lands is ordered in an action of partition, an appeal lies. Miller, 17 Ind. 88.

Hunter r.

In an action to quiet title and for partition, an appeal lies from the order decreeing partition. Jackson v. Myers, 120 Ind. 504; Kreitline v. Franz, 106 Ind. 359.

An appeal lies from an order transferring a cause to the United States court. Burson v. Bank, 40 Ind. 173.

And from a void judgment. Shoemaker v. Board, 36 Ind. 175.

In actions originating before mayors or justices or justices of the peace, where less than fifty dollars is in controversy, an appeal will not lie unless the validity of an ordinance is involved. Cowley v. Town, 60 Ind. 327; Railway Co. v. Jackson, 64 Ind. 398; Halleck v. Weller, 72 Ind. 342; Breidert v. Krueger, 76 Ind. 55; Bosworth v.

Wayne Co., 101 Ind. 175; Railway Co. v. McDade, 111 Ind. 23; Town v. Oustal, 132 Ind. 8.

It must be the validity and not the construction of the ordinance that is involved. State, ex rel., v. Wills, 4 App. 38.

Set-off or counter-claim will be considered in determining the amount in controversy. Coles v. Peck, 96 Ind. 333; Little v. Danville Co., 18 Ind. 86; Hutts v. Williams, 55 Ind. 237; Shriver v. Bowen, 57 Ind. 266; Bowlus v. Brier, 87 Ind. 391.

The amount in controversy is not the amount demanded, but what is shown by the facts to be due. Breidert v. Krueger, 76 Ind. 55.

If the judgment is less than fifty dollars the defendant can not appeal.

Railway Co.

. Coyle, 85 Ind. 516; Railway Co. v. McDade, 111 Ind. 23; Duckworth v. Mosier, 4 App. 267.

The limitation as to amount does not apply to actions of replevin. Hall v. Durham, 113 Ind. 327; Enders v. McDonald, 5 App. 297.

If an improper counter-claim is pleaded it will be considered in determining the amount in controversy. Lake Shore, etc., Co. v. Van Auken, 1 App. 492.

Where judgment was rendered before a justice of the peace for $100, and on appeal to the circuit court judgment was rendered against the defendant for costs only, it was held that he could not appeal. Jeffersonville, etc., Co. v. Harrold, 3 App. 592.

An appeal will lie to the supreme court in all cases originating before a county board. Board. Binford, 70 Ind. 208.

Parties can not appeal after receiving money or property on the judgment. Patterson v. Rowley, 65 Ind. 108; McCracken v. Cabel, 120 Ind. 266; Newman v. Kiser, 128 Ind. 258; Sterne v. Vert, 108 Ind. 232; Clark v. Wright, 67 Ind. 224; State, ex rel., v. Hebel, 70 Ind. 314; Seigel v. Metzger, 1 App. 367.

The defendant may appeal after payment of the judgment. Belton v. Smith, 45 Ind. 291.

If a judgment is satisfied by the appellee after an appeal, the appeal will be dismissed. Monnett v. Hemphill, 110 Ind. 299.

645. (633.) Appeal within one year-Exception.-640. Appeals in all cases hereafter tried must be taken within one year from the time the judgment is rendered. In all cases heretofore tried they must be taken within one year from the time this act takes effect; but the time allowed the appellant by the pre-existing law shall not be enlarged. Where the appellant is under legal disabilities at the time the judgment is rendered, he may have his appeal at any time within one year after the disability is removed.

The time commences running from the date of the original judgment. Jenkins v. Corwin, 55 Ind. 21.

When the judgment is rendered on one day, but not entered until a subsequent day nunc pro tunc, the appeal time commences at the date of rendition, not of entry. Anderson v. Mitchell, 58 Ind. 592.

The day on which a judgment is rendered is excluded in computing the time. Wright . Manns, 111 Ind. 422.

When the time for taking an appeal is shortened it applies to all cases. Buntin v. Hooper, 59 Ind. 589; Railroad Co. v. Barbee, 74 Ind. 169.

The record must be filed within the year in the supreme court. Joyce v. Dickey, 104 Ind. 183; Johnson v. Stephenson, 104 Ind. 368.

Errors must be assigned in the supreme court within the year. 110 Ind. 94; Lawrence v. Wood, 122 Ind. 452.

Bacon v. Withrow,

Parties under legal disabilities have a year, after the disabilities are removed, to appeal. Hawkins v. Hawkins, 28 Ind. 66.

The question whether an appeal is barred in time or saved by disability may be presented and determined in the supreme court. Buntin v. Hooper, 59 Ind. 589; Evansville, etc., R. R. Co. v. Barbee, 59 Ind. 592; Day v. School City, 78 Ind. 280.

In actions for partition, when the title is in issue, the judgment defining the rights of the parties and decreeing a sale is final, and the time for appeal dates from rendition of judgment. Kreitline v. Franz, 106 Ind. 359.

An agreement of submission is not a waiver of the right to move to dismiss an appeal taken too late. Day v. School City, 78 Ind. 280.

When the perfecting of an appeal is prevented by fraud the supreme court may extend the time for appeal. Smythe v. Boswell, 117 Ind. 365.

Appeals involving the validity of a will, and quieting titles to lands, may be taken within a year. Mason v. Roll, 130 Ind. 260.

646. (634.) Part only barred-Proceedings.-641. The supreme court, upon being satisfied that the statute of limitations has barred a part only of the appellants, may strike their names from the record, and proceed to affirm, or reverse, or modify the judgments as to those appellants only who are before the court.

When part of appellants are barred by the statute of limitations, their names may be stricken from the record and the case proceed as to those not barred. McEndree v. McEndree, 12 Ind. 97; Hawkins v. Hawkins, 28 Ind. 66.

647. (635.) A part may appeal-Notice.-629. A part of several co-parties may appeal; but in such case, they must serve notice of the appeal upon all the other co-parties, and file the proof thereof with the clerk of the supreme court. Unless they appear and decline to join, they shall be regarded as having joined, and shall be liable for their due proportion of the costs. If they decline to join, their names may be struck out, on motion; and they shall not take an appeal afterward, nor shall they derive any benefit from the appeal, unless from the necessity of the case, except persons under legal disabilities.

The supreme court will dismiss an appeal where a part only of several co-parties appeal from a joint judgment, without notice of such appeal to their co-parties. Herzogg v. Chambers, 61 Ind. 333; Peoples, etc., Bank v. Finney, 63 Ind. 460; Cranmore v. Bodine, 65 Ind. 25; Hunter v. Chrisman, 70 Ind. 439; Couch v. Thomas, 71 Ind. 286; Hunderlock v. Dundee Co., 88 Ind. 139.

The notice to co-parties must be given and proof filed within the time allowed for an appeal. Holloran v. Midland R. W. Co., 129 Ind. 274.

It is only parties against whom judgment is rendered that must be given notice of appeal. Keller v. Boatman, 49 Ind. 101; Hammon v. Sexton, 69 Ind. 37; Koons v. Mellett, 121 Ind. 585; Taylor v. Bruner, 130 Ind. 482.

Co-parties means parties to the judgment, and not co-parties plaintiff or defendant. Hadley v. Hill, 73 Ind. 442.

The voluntary appearance and declination of a party to join in an appeal dispenses with notice. Rich e. Starbuck, 45 Ind. 310; Truman . Scott, 72 Ind. 258.

If co-parties after notice fail to decline to join in the appeal, they will be regarded as parties thereto. Rabb v. Graham, 43 Ind. 1.

A failure to object to want of notice to co-parties is a waiver thereof. Hunter v. Chrisman, 70 Ind. 439.

It is too late after submission to object to want of notice to co-parties. De Haven r. De Haven, 77 Ind. 236; Burk v. Simonson, 104 Ind. 173.

The supreme court may allow the appellant time to give co-parties notice of an appeal when justice requires it. Hutts v. Martin, 131 Ind. 1.

648. (636.) Death of party-Appeal-Notice.-630. In case of the death of any or all the parties to a judgment before an appeal is taken,

an appeal may be taken by, and notice of an appeal served upon, the persons in whose favor and against whom the action might have been revived, if death had occurred before judgment.

An appeal taken to the supreme court in the name of a dead appellant is a nullity. Taylor v. Elliott, 52 Ind. 588; Taylor v. Elliott, 53 Ind. 441; Branham v. Johnson, 62 Ind. 259.

The heirs of a deceased party may appeal from a judgment. Benoit v. Schneider, 39 Ind. 591; Vail v. Lindsay, 67 Ind. 528.

If a judgment of the supreme court is void because of the death of a party, such judgment will be set aside. Taylor v. Elliott, 52 Ind. 588.

It is only in actions that survive that an appeal may be taken by the representatives of a deceased party. Stout v. Railroad Co., 41 Ind. 149.

If a party dies after the submission of a cause, judgment may be rendered as of the date of submission. Lockenour v. Sides, 57 Ind. 360.

649. (637.) Death no abatement.-631. The death of any or all the parties shall not cause the proceedings to abate; but the names of the proper persons being substituted, upon consent or upon notice, the cause may proceed.

On the death of a party the proper parties may be substituted. Hahn v. Behrman, 73 Ind. 120.

650. (638.) Appeal during term-Stay-Bond-Transcript.-632. When an appeal is taken during the term at which judgment is rendered, it shall operate as a stay of all further proceedings on the judgment, upon an appeal-bond being filed by the appellant, with such penalty and surety as the court shall approve, and within such time as it shall direct, payable to the appellee, with condition that he will duly prosecute his appeal, and abide by and pay the judgment and costs which may be rendered or affirmed against him; and if the appeal is taken from a judgment for the recovery of real property, or the possession thereof, by the party against whom the judgment for the recovery is rendered, then the condition of the bond shall further provide that the appellant shall also pay all damages which may be sustained by the appellee for the mesne profits, waste, or damage to the land during the pendency of the appeal; and if from a judgment for the recovery or return of personal property, or for such property or its value, then that if he deliver or return the property he will also pay the reasonable value of its use and any damage it may sustain during the pendency of an appeal. The transcript shall be filed in the office of the clerk of the supreme court within sixty days after filing the bond.

In order to stay proceedings the amount of the bond must be designated, and the bond filed with the sureties approved by the court, or filed within such time, with such sureties and in such amount as the court may designate. Burk v. Howard, 15 Ind. 219; Mitchell v. Gregory, 94 Ind. 363; June v. Payne, 107 Ind. 307; Hartlep v. Cole, 120 Ind. 247.

Proceedings are not stayed until the bond is filed. Ham v. Greve, 41 Ind. 531; Mitchell v. Gregory, 94 Ind. 363.

The penalty and surety on the bond must be fixed and approved by the court. Closkey r. Indianapolis Union, 87 Ind. 20.

Mc

An appeal may be taken without the filing of a bond. Burt v. Hoettinger, 28 Ind. 214; Ruschaupt v. Carpenter, 63 Ind. 359.

The formal approval of an appeal-bond may be waived by the parties. Jones v. Droneberger, 23 Ind. 74; Easter v. Acklemire, 81 Ind. 163.

An appeal-bond need not be signed by the judgment-defendant; if signed by sureties it is sufficient. Railsback v. Greve, 58 Ind. 72.

The filing of a bond in proceedings for partition only stays the judgment for costs. Randles v. Randles, 67 Ind. 434.

On an appeal from a judgment suspending an attorney from practice, the filing of a bond does not stay the effect of the judgment except as to costs. Walls v. Palmer, 64

Ind. 493.

The supreme court may require the filing of a new bond. Ruschaupt v. Carpenter, 63 Ind. 359.

The penalty of a bond can not be increased by the supreme court. Wilcox, 111 Ind. 561.

Railway Co. v.

The only effect of filing an appeal bond is to stay proceedings on the judgment. Central, etc., Co. v. State, ex rel., 110 Ind. 203; Nill v. Comparet, 16 Ind. 107; State, ex rel., v. Krug, 94 Ind. 366.

Rents of lands are covered by an appeal-bond in actions to recover real estate. Opp v. Ten Eyck, 99 Ind. 345.

Failure to object to the want of a bond when required may be a waiver of the irregularity. West v. Cavins, 74 Ind. 265.

The obligees in such bond may, upon condition broken, proceed directly upon the bond; they need not first go upon their judgment below. Railsback v. Greve, 58 Ind. 72. Failure to file the transcript within the time fixed renders the bond inoperative to stay proceedings, but does not otherwise affect the appeal. Hadley v. Hill, 73 Ind. 442.

651. (639.) Failure to file record-Execution-Proviso.-633. In all cases appealed to the supreme court, where bond shall have been filed in the court below in term and execution therein stayed, and the appellants shall fail to file in the office of the clerk of the supreme court the record of the case so appealed within the time required by law, the party in whose favor the judgment may be in the court below may have execution thereon, upon the filing with the clerk of the proper court the certificate of the clerk of the supreme court showing that said record was not so filed in proper time: Provided, however, That nothing in this section shall be so construed as to prevent any such appellant from filing the transcript, and perfecting an appeal afterward according to law.

652. (640.) Appeal after term-Notice-Filing.-635. After the close of the term at which the judgment is rendered, an appeal may be taken by the service of a notice in writing on the adverse party or his attorney, and also on the clerk of the court in which the proceedings were had, stating the appeal from the judgment or some specific part thereof; or such appeals may be taken by procuring from the clerk of the court a transcript of the record and proceeding in the suit, or so much thereof as is embraced in the appeal, and filing the same in the office of the clerk of the supreme court, who shall indorse thereon the time of filing, and issue a notice of the appeal to the appellee.