Central Union Telephone Co. v. State ex rel. Board of Commissioners

Elliott, C. J. On the 27th day of January, 1885, a member of the board of commissioners of Tippecanoe county filed an affidavit charging the appellants with having com [204] mitted a contempt of the Tippecanoe Circuit Court, by disobeying an order of injunction, and, upon a hearing, they were adjudged guilty and fined. An appeal was taken from the decree enjoining the Central Union Telephone Company from erecting poles in the public square in the city of Lafayette, and the acts constituting the co'ntempt were not performed until after the appeal had been perfected. It is contended by the appellants that the appeal dissolved the injunction, and that they were not therefore guilty of a contempt in doing the prohibited acts. This contention can not prevail, for the appeal did not nullify or impair the decree awarding an injunction. State, ex rel., v. Chase, 41 Ind. 356; Walls v. Palmer, 64 Ind. 493; Randles v. Randles, 67 Ind. 434. The effect of a supersedeas is to restrain the appellee from taking affirmative action to enforce his decree, but it does not authorize the appellant to do what the decree prohibits him from doing. The doctrine which our decisions have long-maintained is thus stated in Nill v. Comparet, 16 Ind. 107: “Indeed, the only effect of an appeal to a court of error, when perfected, is to stay execution upon the judgment from which it is taken. In all other respects, the judgment, until annulled or reversed, stands binding upon the parties, as to-every question directly decided.” Burton v. Reeds, 20 Ind. 87; Mull v. McKnight, 67 Ind. 525; Buchanan v. Logansport, etc., R. W. Co., 71 Ind. 265; Scheible v. Slagle, 89 Ind. 323; Padgett v. State, 93 Ind. 396; State, ex rel., v. Krug, 94 Ind. 366. The question is so firmly settled by our own decisions that it is hardly necessary to look elsewhere, but a reference to one- or two cases in other courts may not be unprofitable. In the-well considered case of Sixth Avenue R. R. Co. v. Gilbert E. R. R. Co., 71 N. Y. 430, the question was decided as we here decide it, the court saying, among other things, of the appeal,, that “It did not absolve them from the duty of obedience, [205] ■and permit them to do that which the judgment absolutely prohibited, and the doing of which would, as adjudged by the court, cause irreparable mischief to the plaintiff, or an injury which could not certainly be compensated in damages.” Filed March 12, 1887. Chancellor Walworth, discussing a like question, said: “ The effect of an appeal, after the proper steps have been taken to render it a stay of proceedings upon the order or decree appealed from, is to leave the proceedings in the same situation as they were at the time of perfecting such appeal, but not as they were before the order or decree appealed from Avas entered.” Graves v. Maguire, 6 Paige Ch. 379. In Robertson v. Davidson, 14 Minn. 554, it was said of the effect of an appeal, that “ It operates to stay or suspend the proceedings which may have been taken at the time the appeal is perfected, in the condition in Avhich they then exist, and to prevent any further step or proceeding on the judgment or matter embraced therein. Burrall v. Vanderbilt, 1 Bosav. 643; Clark v. Clark, 7 Paige, 607; Burr v. Burr, 10 Paige, 169; Cook v. Dickerson, 1 Duer, 679; First National Bank v. Rogers, 13 Minn. 407.” Judgment affirmed.