McDorman v. City of Terre Haute , 94 Ind. App. 592 ( 1927 )

ON PETITION FOR REHEARING. On petition for rehearing, appellee presents that the trial court had no jurisdiction to review the proceedings from their inception and to reassess benefits.

Sec. 10344 Burns 1926, provides a method of appeal in all appeals allowed at the time that it went into force, March 14, 1919, or that might thereafter be allowed by law.

In condemnation proceedings such as here, Sec. 10355 Burns 1926, in force at the time of the enactment of Sec. 10344, supra, allows an appeal only as to awards and 4. assessments. Sec. 10347 Burns 1926, provides that the court shall rehear the matter of such assessments de novo, and confirm, lower or increase the same, as may seem just. Thus it appears that the court had jurisdiction to try the question of benefits and damages but refused to do so, and dismissed the appeal. As held in the original opinion, had this issue been tried by the court on its merits there could have been no appeal from the court's decision thereon; but when a court wrongfully decides that it has no jurisdiction and dismisses an appeal, as here, when it should have proceeded to determine the rights of the parties as to benefits and damages, such error may be corrected by appeal. The principle involved was decided in Cityof Peru v. Kreutzer, cited in the original opinion, which case appellee contends should be overruled, but the opinion herein was filed October 13, 1927, and on October 14, 1927, a petition to transfer the Kreutzer case to the supreme court was denied. There the court wrongfully assumed jurisdiction, here the court refused to assume jurisdiction. Thus in each case the question was as to the court's jurisdiction.

While under the statute there is no right of appeal from a judgment of the Circuit Court or Superior Court on merits, there is a right of appeal for the sole purpose of determining 5. the jurisdictional question. Petition denied.

Dausman, J., absent.