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(158 Ind. 500)

HAYS v. PUGH et al. (Supreme Court of Indiana.

May 20, 1902.) VACATION APPEALS DISMISSAL PARTIES DEATH OF APPELLEE WITHOUT SERVICE OF NOTICE-BRINGING IN SUCCESSOR-LACHES.

Under court rule 36 (55 N. Ę. vii), providing that where the notice of a vacation appeal proves ineffectual, and no steps are taken for more than 90 days after the issuance of such notice to bring appellee into court, the appeal shall be dismissed, where, after the transcript in a vacation appeal was filed, and notice issued, and one of appellees, a trustee, died before the notice was served on him, and no steps were taken to make his successor a party until six months after his appointment, and over six months after the year allowed for the appeal had expired, a motion at such time to make the successor of the deceased appellee a party would be denied, and, such successor not having appeared, the appeal would be dismissed for want of a necessary party.

Appeal from circuit court, Hancock county; Charles G. Offutt, Judge.

Action by Emma Hays against Joseph W. Pugh, trustee, and others. From a judginent in favor of defendants, plaintiff appeals. Transferred from appellate court under Burns' Rev. St. 1901, § 1337u (Acts 1901, p. 590). Appeal dismissed.

A. C. Carver and Forkner & Forkner, for appellant. W. A. Kittinger and W. S. Diven, for appellees.

MONKS, J. This action was brought by appellant against appellees to quiet title to the real estate described in the complaint. The trial of the cause resulted in a judgment in favor of appellees for costs, and that appellant take nothing by her said action.

The Alexandria National Bank, one of the appellees, insists that, as this is a vacation appeal, it must be dismissed because Joseph W. Pugh, trustee, one of the appellees, died after the transcript was filed, and before he was served with notice of the appeal, and his successor, Jacob L. Crouse, has not been made an appellee, and served with notice of the appeal. The transcript was filed December 3, 1900,-the day before the expiration of the year allowed for appeal. Process was issued by the clerk December 3, 1900, and returned January 8, 1901, showing service on all the resident appellees, except Joseph W. Pugh, trustee for the benefit of the creditors of Samuel Cassell, who died December 28, 1900, without any notice being served upon him. The other appellees being nonresidents, notice was given them by publication. Jacob L. Crouse was appointed trustee for the creditors of Samuel Cassell, to succeed said Pugh, deceased, on January 4, 1901. No steps were taken to make said Crouse, trustee, an appellee, or to give him notice of the appeal, until July 1, 1901, when appellant filed an application suggesting the death of said Pugh, trustee, and asking that Crouse, his successor as trustee, be substituted, and that notice be issued and served upon him. On October 9, 1901, said application was denied by the ap

pellate court, where the appeal was then pending. Said Crouse, trustee, has never been made an appellee, or brought into court.

It has been uniformly held by this court that the parties to a judgment appealed from, adverse to appellant, must be made appellees; that in vacation appeals this court only ac quires jurisdiction over the parties to a judg ment adverse to appellant who are named as appellees in the assignment of errors, and who appear, or are properly served with notice. Bank v. Reid, 154 Ind. 54, 56, 55 N. E. 1023; Ex parte Sullivan, 154 Ind. 440, 56 N. E. 911; McClure v. Coal Co., 147 Ind. 119, 121, 122, 46 N. E. 349; Garside v. Wolf, 135 Ind. 42-44, 34 N. E. 810, and cases cited; Loucheim v. Seeley, 151 Ind. 665, 667, 43 N. E. 646; Abshire v. Williamson, 149 Ind. 248, 251, 252, 48 N. E. 1027, and cases cited; Association v. Huntsinger, 150 Ind. 702, 50 N. E. 381; State v. East, 88 Ind. 602; Hunderlock v. Investment Co., Id. 139; Ewbank, Man. § 149. It is also settled by the above authorities that if parties to a judgment adverse to appellant are not made appellees, or, in a vacation appeal, if made appellees, do not appear, and are not notified as required by law, this court has no jurisdiction to determine the appeal upon its merits. Rule 36 of the supreme and appellate courts (55 N. E. vii), in force since November 26, 1900, provides that "when a cause appealed in vacation has been on the docket ninety days or more, and there is no appearance by appellee, and no steps have been taken to bring him into court, or where a notice has been issued and proves ineffectual from any cause, and no steps are taken for more than ninety days after issuance of such ineffectual notice to bring appellee into court, the clerk shall enter an order dismissing the appeal." It was held by this court in O'Mara v. Railroad Co., 150 Ind. 648, 650, 651, 50 N. E. 821, under said rule, that if an ineffectual notice, for any cause, requires additional steps to be taken by an appellant, he is not entitled to an indefinite time to take such steps. See, also, Cole v. Franks, 147 Ind. 281, 283, 284, 46 N. E. 532; Farwell Co. v. Newman, 17 Ind. App. 649, 47 N. E. 234. In this case the process issued was ineffectual because not served on Pugh, trustee, who died December 28, 1900. His successor was appointed January 4, 1901, and no steps were taken to make him an appellee until July 1, 1901. The appellate court, by overruling the application then made, held that appellant was not entitled to make said Crouse, trustee, an appellee on July 1, 1901,more than six months after the year allowed for appeal had expired.

It follows from what we have said, and the authorities cited, that Pugh, trustee, not having appeared nor been served with notice of the appeal as required by law, and his successor not having been made an appellee, we have no jurisdiction to determine this appeal upon its merits, and the same must be dismissed. Appeal dismissed.

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1. Under Burns' Rev. St. 1901, § 72831, making it unlawful for the board of county commissioners to grant any license to sell intoxicating liquors in any township, etc., where a written remonstrance, signed by a majority of the legal voters of such township, is filed, pursuant to the act, against the granting of such license, the right of remonstrance may be exercised through a duly appointed agent or attorney.

2. Where a power of attorney, signed by a majority of the legal voters of the township, directs the attorney, without giving him any discretion in the matter, to file a written remonstrance in the names of such voters against every applicant for license to sell intoxicating liquors in the township, a remonstrance filed by the attorney pursuant to such power is sufficient in any particular proceeding for license to deprive the county commissioners of jurisdiction to consider the application for license, the same as if the voters themselves had signed and filed the remonstrance.

3. A power of attorney, signed by a majority of the legal voters of a township, appointing an attorney in fact to file a written remonstrance, pursuant to Burns' Rev. St. 1901, § 72831, against the granting to "any applicant therefor a license to sell intoxicating liquors in the township, was not invalid as conferring on the attorney a discretion as to what applicants he would remonstrate against; the words "any applicant," as used, being equivalent to "any and all applicants" or "every applicant" against whom the attorney by acceptance of the power impliedly engaged to remonstrate as directed.

Appeal from circuit court, Hancock county; E. W. Felt, Judge.

Application by John M. Ludwig for license to sell intoxicating liquors. From a judgment affirming an order of the board of county commissioners refusing the application, applicant appeals. Affirmed,

J. E. McCullough, for appellant. Smith, Duncan, Hornbrook & Smith, for appellees.

JORDAN, C. J. Appellant, John M. Ludwig, applied to the board of commissioners of Marion county, under section 7278, Burns' Rev. St. 1901 (section 5314, Horner's Rev. St. 1901), for a license to sell intoxicating liquors at the village of Oaklandon, in Lawrence township, Marion county, Ind. Written remonstrances, based on section 72831, Burns' Rev. St. 1901, purporting to have been signed by a majority of the legal voters of Lawrence township, were filed with the auditor of said county. By virtue of these remonstrances the board denied appellant's application, and adjudged that he pay the costs of the proceeding. From this decision of the board he appealed to the Marion superior court, from which the venue was changed to the Hancock circuit court. In the latter court, appellant unsuccessfully moved to strike out and reject the remonstrances. trial by the court resulted in a finding in favor of the remonstrators, and, over appel

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lant's motion for a new trial, the court adjudged that he take nothing by the proceeding, and that the remonstrators recover of him their costs laid out and expended. To reverse this judgment this appeal is prosecuted, and the errors assigned are based on the rulings of the lower court in denying the motion to strike out the remonstrances, and in permitting appellees (remonstrators below) to introduce and read in evidence certain written instruments denominated "powers of attorney," and in overruling the motion for a new trial.

The record discloses the following facts: Appellant gave the notice required by section 7287, Burns' Rev. St. 1901 (section 5314, Horner's Rev. St. 1901), of his intention to apply for a license to sell intoxicating liquors at the regular session of the board of commissioners of Marion county, beginning on the first Monday in May, 1900. On May 3, 1900, three days before the commencement of said session, two written remonstrances were filed with the auditor of said county. These remonstrances, which, for convenience, may be denominated No. 1 and No. 2, are as follows: "We, the undersigned residents and voters of Lawrence township, Marion county, Indiana, do hereby remonstrate against the granting of a license to John M. Ludwig to sell intoxicating, spirituous, vinous, or malt liquors in less quantities than five gallons at a time, with the privilege of allowing the same to be drank on the premises, in said township, as described in his application, in the town of Oaklandon." "We, the undersigned residents and legal voters of Lawrence township, Marion county, state of Indiana, do hereby remonstrate against the granting of license by the county commissioners to John M. Ludwig to sell intoxicating, spirituous, vinous, or malt liquors in less quantities than five gallons at a time, with the privilege of allowing the same to be drunk on the premises, in said township, described in his application, in the town of Oaklandon, in the county of Marion, state of Indiana." The first contained the names of 196 legal voters of said Lawrence township, and the second contained the names of 137 of the legal voters of said township. The names to both remonstrances constituted a total of 333, which, as hereinafter shown, were a majority of the legal voters of said township. The names of the remonstrators to the remonstrance No. 1 were all signed thereto by Perry C. Apple, pursuant to the authority or power invested in him by a written instrument or document denominated a "power of attorney," duly signed, executed, and acknowledged by all of the remonstrators, whose names said Apple thereafter subscribed to said remonstrance. This instrument, by which Apple was constituted as the attorney or agent of the remonstrators whose names were subscribed to remonstrance No. 1, omitting the signatures and certificate of acknowledgment, is as follows: "Know all men by these presents that we, the under

signed legal voters of Lawrence township, Marion county, Indiana, have constituted and appointed, and do hereby constitute and appoint, Perry C. Apple, of Lawrence township, Indiana, our true and lawful attorney, for us, and in our names, place, and stead, to sign any and all necessary papers and remonstrances against the granting by the board of commissioners of Marion county, Indiana, to any applicant therefor, a license to sell spirituous, vinous, malt, or other intoxicating liquors under the laws of the state of Indiana, with the privilege of allowing the same to be drunk on the premises, at any and all places or locations within said Lawrence township. Witness our hands this 10th day of February, 1900." The names of the voters subscribed to remonstrance No. 2 were all signed thereto by M. M. Hindman, pursuant to the authority and power invested in him by the remonstrators under the provisions of three instruments or documents duly executed and acknowledged by the voters, whose names he thereafter subscribed to said remonstrance No. 2. Each of these instrument or documents, omitting the signatures and certificate of acknowledgment, is as follows: "Know all men by these presents that we, the undersigned legal voters of Lawrence township, Marion county, Indiana, have constituted and appointed, and do hereby constitute, M. M. Hindman, of Lawrence township, Marion county, Indiana, our true and lawful attorney, for us, and in our names, place, and stead, to sign any and all necessary papers and remonstrances against the granting by the board of county commissioners of Marion county, Indiana, to any applicant therefor, a license to sell spirituous, vinous, malt, or other intoxicating liquors under the laws of the state of Indiana, with the privilege of allowing the same to be drunk on the premises, at any and all places or locations within said Lawrence township. Witness our hands this 15th day of March, 1900."

Appellant, in his verified motion filed in the circuit court to reject or strike out the remonstrances in question, alleged that Apple and Hindman had no authority to sign the names of the remonstrators to the remonstrances filed in the office of the auditor of Marion county, and that these documents were not signed and filed pursuant to any authority. Before appellant filed his motion to strike out and reject the remonstrances, it was agreed by the parties in open court "that M. M. Hindman signed the names of all the parties to said remonstrance purporting to be signed by John Smith and others [being remonstrance No. 2], and that before said Hindman so signed said names each of the three powers of attorney had been executed; that the persons whose names were signed to said remonstrance by said Hindman are the same persons whose names are signed to said powers of attorney executed to said Hindman." It was further agreed "that all the names of

the signers to said remonstrance purporting to be signed by Thad A. Cory and others [being remonstrance No. 1] were signed thereto by Perry C. Apple, and that said persons who appeared to such remonstrance had executed the said power of attorney herein above mentioned as being executed to him prior to the time he so signed said remonstrance; that each of said powers of attorney were unrevoked at the time said Hindman and Apple, respectively, signed said names to said remonstrances; that neither Hindman nor Apple had any authority whatever to sign said names or file said remonstrances in the auditor's office, except the authority conferred by said powers of attorney; that the persons whose names were signed to said remonstrances were all legal voters of Lawrence township, and that the total number of votes cast in said township at the general election of 1898 for secretary of state was 605; and that the total number of legal voters whose names appeared to said remonstrances is more than 330." Thereupon the motion of appellant to strike out and reject said remonstrances was submitted to the court upon the verified motion under the above agreement, and the court overruled the same, to which ruling appellant excepted. On the trial of said cause appellant read in evidence his application for a license, proof of publication of his notice, and also the notice, and introduced certain witnesses who testified that he was of the age of 38 years, a legal voter of Lawrence township, in Marion county, and had been such legal voter since the 1st day of January, 1900; that he was a man of good moral character, not in the habit of becoming intoxicated, and fit to be intrusted with a license for the sale of intoxicating liquors; and thereupon the same facts, as previously stated, and agreed to by the parties in open court, were introduced and read in evidence. Thereupon appellees offered to read in evidence the said powers of attorney previously mentioned, to which appellant objected for the following reasons: (1) That they were not sufficient to confer any authority upon the said M. M. Hindman to sign the names of the parties executing the same, or any of them, to the remonstrance against appellant upon his application to sell intoxicating liquors; (2) that the power to remonstrate against the granting of a license to sell intoxicating liquors upon such remonstrance as is in question in this case is a power delegated to the citizens of the township by the legislative department of the state, and cannot be by them delegated to another person by powers of attorney or otherwise; (3) that said power of attorney attempts to confer up on said M. M. Hindman authority to sign any and all remonstrances in the names of those executing said power of attorney against the granting of license to any applicant, thereby leaving it entirely within the power or discretion of said Hindman to sign such names to a remonstrance against any applicant, or not

to sign the same, as he might see fit. The court overruled these objections, and permitted the said powers of attorney to be read in evidence, to which ruling appellant excepted. The same objections were made to the power of attorney executed by the remonstrators to Perry C. Apple, and were likewise overruled, and the proper exception reserved, and the power of attorney in question was read in evidence. Each of the remonstrances, over the objection of appellant, were read and introduced in evidence. The overruling of the objections to the introduction in evidence of the powers of attorneys, and also the remonstrances, is separately assigned as reasons for a new trial, and it is also assigned as a further reason in the motion for a new trial that the finding of the court is contrary to law, and is not sustained by sufficient evi dence.

The questions arising under the facts in this case, and, in truth, the only ones discussed by the parties, are: (1) Were the legal voters of Lawrence township (appellees herein) entitled, under the law, to duly appoint, constitute, and direct, by a written power of attorney, Apple and Hindman, as their attorneys or agents, without giving or investing them with any discretion whatever in the matter, to remonstrate in writing, in the names of their said principals, against every person applying to the board of commissioners of said county for a license to sell intoxicating liquors in that township? (2) Said persons having accepted the agency conferred upon them as shown in this case, and having, in the names of said voters, their principals, remonstrated, as shown, against granting the license which appellant sought to obtain in this case, can such remonstrance, signed by a majority of the legal voters of that township, as disclosed, in a legal sense, be considered as the act of said voters under the provisions of the statute hereinafter set out, and, under the circumstances, were the board of commissioners, and the circuit court on appeal, justified in dismissing appellant's application by reason of such remonstrance?

We are of the opinion that these questions must be answered in the affirmative. Section 9 of the statute commonly known as the "Nicholson Law," in force since June 28, 1895 (being section 72831, Burns' Rev. St. 1901), upon which the remonstrances in this case are based, which law, as held by this court, is supplemental to the liquor law of 1875, provides: "If, three days be.fore any regular session of the board of commissioners of any county a remonstrance in writing, signed by a majority of the legal voters of any township or ward in any city situated in said county, shall be filed with the auditor of the county, against the granting of a license to any applicant for the sale of spirituous, vinous, malt or other intoxicating liquors under the law of the state of Indiana, with the privilege of allowing the same to be drunk on the prem

ises where sold within the limits of said township, or city ward, it shall be unlawful thereafter for such board of commissioners to grant such license to such applicant therefor during the period of two years from the date of the filing of such remonstrance. If any such license should be granted by said board during said period the same shall be null and void, and the holder thereof shall be liable for any sales of liquors made by him the same as if such sales were made without license. The number to constitute a majority of voters herein referred to shall be determined by the aggregate vote cast in said township or city ward for candidates for the highest office at the last election preceding the filing of such remonstrance." In Cochell v. Reynolds, 156 Ind. 14, 58 N. E. 1029, an attempt was made to obtain a decision of this court in regard to the right of the legal voters of a township or ward to exercise their right of remonstrance under this section through a duly appointed and constituted agent; but the question was left undecided for the reason, in that case, the matter of remonstrating or not remonstrating under the authority conferred by the power of attorney was left wholly to the discretion of the agent. In the course of the opinion in that appeal, Baker, J., said: "To each voter is committed the right to decide whether or not he will oppose any or all applications. He may be hostile to the commerce, and determine that he will resist every application. He may favor a well-regulated traffic, and conclude to thwart only those applicants he deems unfit." In the appeal of Castle v. Bell, 145 Ind. 8, 44 N. E. 2, the question in respect to the right of voters of a township to remonstrate, under section 7278, Burns' Rev. St. 1901 (section 5314, Horner's Rev. St. 1901), through an attorney, against the granting of a license to sell intoxicating liquors, on the ground of immorality or unfitness of the applicant, was presented and decided. It was affirmed in that appeal, as had been previously affirmed by this court, that a proceeding before the board of commissioners to obtain a license to sell intoxicating liquors under the liquor law of 1875 was a judicial proceeding in the nature of a civil action, which might be prosecuted or defended in person or by attorney, and the right of a voter or voters to remonstrate through an attorney at law was sustained. The Nicholson law of 1895, as we have said, is supplemental to the liquor law of 1875, and it in no more manner deprives a voter or voters of a township wherein an applicant for a license desires to sell intoxicating liquors of the right or privilege to remonstrate under section 7278, Burns' Rev. St. 1901 (being section 3 of the liquor law of 1875), on the grounds of immorality or unfitness of the applicant. Under section 9 of the Nicholson law, in case a majority of the voters

desire to oppose the granting of a license, they are relieved of the burden of basing their remonstrance on the ground of immorality or unfitness of the applicant, and are not required to assign any cause whatever for their opposition to the granting of the license. A remonstrance filed under said section 9 (section 7283i, Burns' Rev. St. 1901) has no regard whatever for the merits of the application. It will operate to defeat and bar the applicant who is fit to be intrusted with a license, in like manner as it does one who is unfit. When the board of commissioners, upon a hearing, finds that such a remonstrance was signed by a majority of the legal voters of the township or ward, as the case may be, and that the same was filed with the auditor of the county within the time prescribed by the statute, the power or jurisdiction of the board in the matter of the application in the particular case is thereby terminated, and the board can proceed no further therein, but must dismiss the application at the cost of the applicant. State v. Gerhardt, 145 Ind. 439, 44 N. E. 469, 33 L. R. A. 313; Massey v. Dunlap, 146 Ind. 350, 44 N. E. 641.

The proposition is evident, we think, that, when the voters avail themselves of the privilege to remonstrate under section 9 of the act of 1895, they thereby become, to an extent, at least, adverse parties to the applicant in the particular proceedings for a license, as do those who remonstrate for the reason of his unfitness. Of course, the former interpose their remonstrance for the single purpose of ousting the board of commissioners of its jurisdiction over the matter, and by this means defeating the granting of the license. If they fail, however, on this issue, they have no standing before the board, under their remonstrance, to assail the fitness of the applicant. While a remonstrance filed in pursuance of section 9 cannot be said to perform the office of an answer to the petition of the applicant, or to serve to call in question his fitness, nevertheless it may be considered as a pleading or document in the proceeding, which challenges and defeats, by reason of its own legal force and effect, the jurisdiction of the board of commissioners.

When filed with

the auditor and presented to the board, it informs both the latter and the applicant that its purpose is to oust the jurisdiction of the tribunal in the particular case, and thereby deprive the applicant of a hearing on the merits of his application. This is the issue which the remonstrance tenders. When appellant gave the required notice of his purpose to apply to the board of commissioners for a license, he, in effect, instituted his proceeding or action, and thereby, in a legal sense, invited the legal voters of Lawrence township to remonstrate either upon the grounds that he was unfit, or under section 9, supra, as they might deem proper. If the 64 N.E.-2

appellees in this appeal, on any of their number, had desired to avail themselves of the privilege to remonstrate under section 7278, supra, they, by virtue of the holding of this court in Castle v. Bell, supra, could have exercised such right through the agency of another, and by this method have made themselves adverse parties to the applicant in the proceedings in question. In our judgment, no sufficient reason can be urged why a different rule should be enforced when the remonstrance is under section 9, supra, and goes to the jurisdiction of the board, than is applicable when it relates or applies to the fitness of the applicant, as it did in the appeal of Castle v. Bell, supra. The board of commissioners is a tribunal of the people, and in respect to all matters or proceedings therein in which any of them are interested or authorized to appear, in the absence of any provision of the law to the contrary, they certainly have the authority to exercise such right, either in person or through the agency of another, whether such agent be a lawyer or a common layman. The contention of appellant's learned counsel, however, is that the statute in question creates a species or right of self-government, to be exercised by the voters as they may judge to be for their best interests; and hence it is asserted that they cannot delegate such power to another, to be exercised for them. It is true that they cannot delegate this particular privilege or right to remonstrate conferred upon them by the legislature to another, to be exercised by him at his mere caprice or discretion, as was the case in Cochell v. Reynolds, 156 Ind. 14, 58 N. E. 1029. But there is nothing in the statute conferring the privilege to remonstrate which either expressly or impliedly inhibits the voters from appointing and constituting some competent person as their special agent, and directing him to carry into effect their protest against the granting of a license to any and all persons who may thereafter apply, in order to engage in the sale of intoxicating liquors in their township or ward. Certainly the statute conferring the right is not of such a character or nature as to render the exercise of the power conferred through the agency of some one competent to act as an agent antagonistic to the principles of public policy. Neither is there anything in the nature or character of the authority conferred upon the voters which renders the same so sacred or peculiarly personal to them that the performance of the act of remonstrating in their names and for them cannot be delegated. We recognize nothing in the power conferred which prevents it from being ruled by the maxim of the common law which affirms that whatever a person may do of his own right he may do by another. Of course, there are well-recognized exceptions to this rule, which assert that where the act to be performed is of such a peculiarly personal nature or character that the performance thereof ought not and can

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