Bozovichar v. State

*367 CONCURRING OPINION

Gilkison, C. J.

I concur in the result of the opinion affirming the action of the lower court, denying bail to the defendant, Bozovichar. But, I think the motion of the attorney-general to dismiss the appeal should have been sustained. Ewbank’s Indiana Criminal Law, 2nd Ed., §787, p. 584, cited by the majority opinion, is quite right in saying:

“The rule that an appeal lies only from a final judgment applies in criminal cases; and merely refusing to quash an indictment, or quashing a part only of the counts of an indictment, or sustaining a demurrer to a special plea of former adjudication, is not such a judgment as will support an appeal; the court must go farther and make a ruling which disposes of the pending prosecution. . . .” (My italics).

Nowhere in the excellent treatise did Mr. Ewbank make the statement that in the appeal of a criminal action “A final judgment is one which determines the rights of the parties in the suit, or a distinct and■ definite branch of it, and reserves no further question or direction for future determination.” This quotation is from appeals in civil proceedings. Civil proceedings may have a number of branches. But when one is properly charged with crime the only issue before the court is— the guilt or innocence of the defendant—and no final appealable judgment can be had in the case except the judgment determining that question. It has no “branches.”

A final judgment from which an appeal may be taken, applicable alike to civil and criminal cases has been defined by this and many other courts, and by the text books as follows:

*368 “A final judgment is one which disposes of the subject matter of the litigation as to the parties so far as the court in which the action is pending has power to dispose of it, and puts an end to the particular case as to all of such parties and all of such issues. Kalleres et al. v. Glover, Receiver (1935), 208 Ind. 472, 478 , 196 N. E. 679 , and cases cited; Terre Haute, etc., R. Co. v. Indianapolis, etc., Co. (1906), 167 Ind. 193, 197 , 78 N. E. 661; Northern, etc., Cable Co. v. The Peoples Mut. Tel. Co. (1916), 184 Ind. 267, 270 , 111 N. E. 4 and cases cited; Kunkel, Warden v. Moneyhon (1938), 214 Ind. 606, 609 , 17 N. E. 2d 82 ; McNelis v. Wheeler (1947), 225 Ind. 148, 152 , 73 N. E. 2d 339 ; The State, ex rel. Braden v. Krug et al. (1883), 94 Ind. 366, 369 , supra and cases cited; II Watson’s Revision, Works’ Practice, §2243; Elliott’s Appellate Procedure, §§90, 91; 2 Gavit, Indiana Pleading and Practice, §523, pp. 2572, 2573.” Todd v. State (1951), 229 Ind. 664, 690, 691 , 101 N. E. 2d 45 . See also State v. Derry (1908), 171 Ind. 18 , 85 N. E. 765 ; Thomas, Administrator v. The Chicago and Erie Railway Company (1894), 139 Ind. 462, 463 , 39 N. E. 44 ; Ind. Nat. Bk. of Indianapolis v. Danner, Rec. (1930), 204 Ind. 709, 711 , 170 N. E. 327 ; The Western Union Telegraph Company v. Locke, Administrator (1886), 107 Ind. 9, 11 , 7 N. E. 579 ; Mak-Saw-Ba Club v. Coffin (1907), 169 Ind. 204, 207, 209 , 82 N. E. 461 ; Barnes v. Wagener (1907), 169 Ind. 511, 514 , 82 N. E. 1037 ; Ewbank’s Manual of Practice, 2d Ed., §20, p. 23. 4 C. J. S., Appeal and Error, §94, p. 184.

An interlocutory order has been well defined by this court and the text writers thus:

“An order of the court, made in the progress of the cause, requiring something to be done or observed, but not determining the controversy, is an interlocutory order.” Derry v. State (1908), 171 Ind. 18, 27 , supra; Pfeifer et al. v. Crane, Guardian (1883), 89 Ind. 485, 487 ; Ind. Nat. Bk. of Indianapolis v. Danner, Rec. (1930), 204 Ind. 709 , 711 and cases cited, supra; The Western Union Telegraph Company v. Locke, Administrator (1886), *369 107 Ind. 9, 11 , supra; Mak-Saw-Ba Club v. Coffin (1907), 169 Ind. 204, 209 , supra; Elliott Appellate Procedure, §§83, 84, pp. 67, 68; §99 last sentence p. 80; Ewbank’s Manual of Practice, §20, p. 23.

The order from which this appeal is attempted to be taken came about as follows: Appellant being charged by indictment in the court below with murder in the second degree, filed his verified motion to be let to bail under §9-1035, Burns’ 1942 Replacement. He did not present the matter by way of habeas corpus 1 as he had a right to do (and from an adverse decision in which he would have had a right to appeal by virtue of the statute, Cl. Fourth, §2-3218, Burns’ 1946 Replacement). After hearing evidence on the motion, the court made the following ruling and order:

“The court having heard evidence on defendant’s petition to be admitted to bail and having heard argument of counsel and being duly considered and advised, now overrules said petition and defendant is ordered retained in the custody of the Sheriff of Vermillion County until the further order of the court.”

No other order and no judgment has been made or rendered in the case. It will be noted that the defendant is ordered held only “until the further order of the court.” The matter attempted to be appealed from has not been finally determined by the trial court. It is still in fieri.

The order has none of the elements of a final judgment. It does not dispose of the subject matter of the litigation so far as the court in which the action is pending has power to dispose of it. It does not put an end of the case as to the parties—the state and the defendant—nor does it put an end to all the pend *370 ing issues in the case. On the contrary the order in question has all the elements of an interlocutory order. It is an order of the court made in the progress of the cause, requiring something to be done—the detention of the defendant. There is nothing whatever in the order determining the controversy between the parties. The case remains on the court’s docket to be hereafter tried, and the particular interlocutory matter is still in fieri in the trial court.

In Indiana the right of appeal is statutory. Civil appeals are covered by §2-3201, Burns’ 1946 Replacement and Criminal appeals by §9-2301, Burns’ 1942 Replacement. When an appeal is taken from a final judgment in a criminal case, “any decision of the court or intermediate order made in the progress of a case may be reviewed.” But no separate appeal may be taken from an interlocutory order made during the progress of the case except such as are provided for in the four clauses of §2-3218, Burns’ 1946 Replacement. State v. Derry (1908), 171 Ind. 18, 26 , supra; Pfeiffer et al. v. Crane, Guardian (1883), 89 Ind. 485, 487 , supra; Mak-Saw-Ba Club v. Coffin (1907), 169 Ind. 204, 207 , supra. The interlocutory order from which this appeal is attempted to be taken does not fall within either of these four clauses. Nisius v. Chapman (1912), 178 Ind. 494, 496 , and cases cited, 99 N. E. 785 ; Natcher v. Natcher (1899), 153 Ind. 368 , 55 N. E. 86 ; Barnes v. Wagener (1907), 169 Ind. 511, 514 , supra.

The appeal was attempted to be taken as an interlocutory appeal. An appeal bond, not a recognizance bail, in the sum of Five Hundred Dollars was filed to the approval of the trial court on October 19, 1951. It recites that “said defendant, having appealed from the judgment of the said Circuit Court of Vermillion County for denying bail in said cause . . . and the said Circuit Court . . . having entered an order that said *371 defendant shall perfect his said appeal within thirty (30) days from the date of said judgment.” The transcript and assignment of error were filed in this court November 8, 1951, agreeable with §2-3219, Burns’ 1946 Replacement which provides the time within which appeals from interlocutory orders may be taken.

An appeal not authorized by statute, does not invest the Supreme Court with jurisdiction. This rule of law is well stated as follows:

“. . . Where an appeal is taken from a judgment or decree not authorized by statute, the appellate court has no jurisdiction. An appellate court cannot acquire jurisdiction other than as requisite to dismiss the appeal on an appeal from a nonappealable order, and it cannot pass on the merits of a case falling within its appellate jurisdiction unless its jurisdiction is invoked in the manner prescribed by the statute. ...” 4 C. J. S. Appeal and Error, §39 p. 116; §92 p. 182, §461 p. 936; Mak-Saw-Ba Club v. Coffin (1907), 169 Ind. 204, 207 , supra.

The law with respect to “splinter,” “piecemeal” or “fragmentary” appeals has been well stated thus:

“Although there may be an appeal from one judgment without an appeal from the other or others where there are two or more distinct and several judgments in an action, it is often held, because of the general rule that only final judgments or orders can be appealed from (see infra §92) that a party cannot divide a case into parts and carry it up by fragments, ...” 4 C. J. S. Appeal and Error, §38 p. 116, §92 pp. 180, 181, 182; §93 p. 183; Mak-Saw-Ba Club v. Coffin (1907), 169 Ind. 204, 208 , supra.

The duty of an Appellate or Supreme Court when an appeal is attempted to be taken from an order or judgment that is not final or from an interlocutory order from which no appeal is authorized, has been well stated as follows:

*372 “The existence on the record of a final or an appealable interlocutory judgment, order or decree is jurisdictional, and, in the absence thereof, an appeal cannot be entertained even by consent or waiver of the parties. Although no objection may be made at the hearing and no motion may be made to dismiss, the court will, on its own motion, dismiss the appeal.” 4 C. J. S. Appeal and Error, §92 p. 182.

The state’s motion to dismiss the appeal should be sustained.

Jasper, J., concurs.

Note.—Reported in 108 N. E. 2d 680 .

Section 3-1902, Burns’ 1946 Replacement.