Allmon v. Review Bd. of Ind. Employment Sec. Division, 18419
| Decision Date | 18 December 1953 |
| Docket Number | No. 18419,18419 |
| Citation | 124 Ind.App. 212,116 N.E.2d 115 |
| Parties | REVIEW BOARD OF INDIANA EMPLOYMENT SECURITY DIVISION et al. |
| Court | Indiana Appellate Court |
Wilbur F. Dassel, Evansville, for appellant.
Arthur R. Donovan Kahn, Dees, Donovan & Kahn, Evansville, for Emge Packing Co.
This is an appeal from a decision of the Review Board of Indiana Employment Security Division.
The claims for benefits under the Security Act, § 1504, Burns' Ann.St. § 52-1539c, were originally heard by Appeals Referee from which the employer appealed to the Full Board. The Full Board held that certain claimants were not eligible for benefits for the period of time stated which was due to stoppage of work due to a labor dispute in which they held that the employees participated.
Our attention is directed to the fact that the parties taking this appeal, and being designated as appellants in the assignment of errors, have failed to name as appellants any party against whom there was an adverse decision rendered by the Review Board. Paul J. Allmon, who is designated as appellant and referred to as C-2 on the list of claimants, was not a party to the proceedings before the Review Board. The transcript of the proceedings shows that on December 11, 1952, many claimants, of whom Paul J. Allmon was one, filed their request by their attorney of record to dismiss the appeal as to them, which request to dismiss contained the following provision: 'To dismiss appeal separately and jointly and to accept the rulings of the referee heretofore given.'
Approximately thirty-four names are shown on Schedule A containing the list of the claimants withdrawing from the appeal before the Full Board. Therefore, what this court has before it is the name of an individual listed as an appellant which the record shows filed a withdrawal from the proceedings before the Review Board from which this appeal has been taken to this court. It seems clear that this is proof that Mr. Allmon does not have any interest in this appeal, he having elected to accept the decision of the Appeals Referee and he is not now a proper party appellant in this court.
The following letters also appear after the name of Mr. Allmon in the assignment of errors, to wit: 'et al.' No further names of appellants are listed in the assignment of errors. Since Mr. Allmon has accepted the decision of the Review Board, all that remains in the assignment of errors as party appellants is 'et al.' From the assignment, therefore, it is impossible to determine who are, or how many appellants are involved in the litigation sought to be presented to the court and who had an adverse finding against them by the Full Review Board. The use of the words, 'et al.' does not save the assignment. Flanagan, Wiltrout & Hamilton, § 2402, page 170.
Judge Lowe, in Lowe's Revision, § 70.69, Appeals, says:
'Where names are omitted in the title, the defects may be cured by setting them forth in the body of the assignment.'
On the page following the assignment of errors in the transcript is a page entitled, 'Title Page', of which the caption, so far as the appellants are concerned, is as follows:
'Paul J. Allmon, 604 E. Locust St., Fort Branch, Indiana, et al., (for list of other appellants see page IX of transcript), Appellants,'
Thereafter, on the following page appears a mimeographed list of names stapled to the transcript.
Under the rules, this title page does not constitute a part of the assignment of errors. Even if it were contended by counsel for appellant that it was a portion of the assignment of errors, it cannot be so considered for the reason that it is not signed.
Rule 2-6 of the Supreme Court of Indiana, 1949 Revision, contains the following:
'In the title to the assignment of errors all parties to the judgment seeking relief by the appeal shall be named as appellants, and all parties to the judgment whose interests are adverse to the interest of the appellants shall be named as appellees.'
Where the rule quoted says:
'Failure properly to name parties will not be treated as jurisdictional.'
refers to misspelling of names, initials or where incorrect given names are listed or other similar means of identification. It does not refer to where there is a total lack or failure on the part of those taking an appeal to name in the assignment of errors the proper party appellants.
Attention is called by appellees in their brief to the fact that the appellants failed to name any party to the decision of the Review Board seeking relief by this appeal in their assignment of errors. In the appellants' reply brief there is a failure to comment upon this alleged error.
The claimants' notice of...
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