Madison, Indianapolis & Peru Railroad v. Briscoe

Judge Stites

delivered the opinion of the court.

On motion to set aside order allowing damages on dismissal of appeal.

The only question raised on this motion is whether, upon a dismissal of an appeal from a judgment order or decree, for the payment of money, the collection of which has been superseeded, the appellee is entitled to tenper cent, damages.

The act of 1798, (1 Stat. Law, 131,) is the only law which authorizes such judgment, and if that has been repealed damages upon dismissals are not allowable; but if still in force no doubt exists as to the right of appellee to his damages.

It is conceded that the Revised Statutes expressly recognize and continue in force all laws then in force regulating proceedings in the court of appeals; but it is contended that the several provisions of the Civil Code, applicable to this court, and which apply to, provide for, and regulate almost every character of proceeding from the original appeal to the final mandate, except in cases of dismissal, have virtually repealed the act in question. Or, in other words, that inasmuch as the legislature has thus regulated all proceedings in this court, and provided expressly for damages upon affirmances, and has failed to provide for damages on dismissals, that such failure should be deemed a constructive repeal of the law authorizing damages in such cases. And furthermore, that sllcli law, if not thus repealed by construction, is ob- .... . „ , _ viousiy within the purview of the Civil Code, and stanc^s repealed by that section which expressly repeals all laws coming within its purview. (Civil Code, sec. 748.)

The Rev. Stat. does not repeal, but expressly continues the laws in force regulating pro ceedings in the court of appeals, nor does the Civil Code repeal the provisions of the act of 1798, allowing damages on dismissal of appeals to the court of appeals when the judgment or decree is for money.

This view, though plausible, altogether overlooks another section of the Code, which defines with precision the repealing effect of the section last mentioned, and limits it to such laws as are inconsistent with the provisions of the Code, or are applicable to cases provided for by it' (Civil Code, sec. 875.) And which disposes of the question before us

The act of 1798, supra, is neither inconsistent with any provision, nor applicable to any case mentioned or provided for thereby. It relates to a class of cases not provided for or mentioned, as has been conceded in the argument, and must therefore be regarded as expressly excepted from the operation of section 748, and unaffected by any rule of construction implying a repeal.

In reply to the suggestion that the judgment appealed from is in rem, and not in personam, we deem it sufficient to say wre do not so regard it.

The original proceeding was by attachment and in rem, but, as appears from the judgment, the appellants were before the court, by actual service and appearance, and they are ordered and required to pay the sum adjudged appellee. Prom that judgment or order they appealed, and sup erseded its collection by the execution of a bond.

The judgment, in our opinion, is in personam and not within that class of cases directing the sale of property in which damages are refused.

The motion to set aside the order awarding damages is overruled