Baltes Land, Stone & Oil Co. v. Sutton

• Decision Date: 24 November 1903
• Citation: 69 N.E. 179,32 Ind.App. 14
• Parties: BALTES LAND, STONE & OIL CO. et al. v. SUTTON.
• Court: Indiana Appellate Court

32 Ind.App. 14

69 N.E. 179

BALTES LAND, STONE & OIL CO. et al.

v.SUTTON.

Appellate Court of Indiana, Division No. 1.

Nov. 24, 1903.

Appeal from Circuit Court, Blackford County; H. J. Paulus, Judge.

Action by James M. Sutton against the Baltes Land, Stone & Oil Company and others. From a judgment overruling a demurrer to the complaint and to a cross-complaint by George W. and Ira B. Spaulding, defendant Baltes Land, Stone & Oil Company appeals. Affirmed.Cantwell & Simmons, W. & E. Leonard, and R. B. Dreibelbiss, for appellant. Hindman & Powell, for appellee.

ROBINSON, J.

Appellee's complaint avers that W. D. Cook executed to him seven promissory notes; that No. 6 thereof is due and unpaid; that as a part of the same transaction Cook entered into a written contract with appellee, for the consideration expressed in the notes, that appellee would convey to Cook certain real estate, but, if default were made in the payment of any note, then the contract should be a lease, and the money to be paid should be rent. The terms of the agreement were extended to assigns. Cook took possession of the land, on which was located a stone quarry. He assigned the contract to George W. and Ira B. Spaulding, and the Spauldings thereafter assigned the same to appellant. It is averred that the only consideration for the assignment to the appellant was the agreement to perform all the covenants of the contract, and that appellant promised and agreed to pay all unpaid notes and installments; that by virtue thereof appellant took possession of the land, and converted its emoluments to its own use, and still holds the land. Cook filed a cross-complaint against the Spauldings, and asked that they be first held liable. The Spauldings filed a cross-complaint against all the parties. In the first paragraph they set out the note, the contract, its assignment, and aver a promise on the part of appellant to pay deferred payments. The second paragraph alleges that appellant took possession of the land in question by virtue of the assignment of the contract to it, and still holds the same. The third paragraph alleges that appellant agreed in writing to pay the deferred payments, the writing having been executed by the agents of appellant. The fourth paragraph alleges a mutual mistake in the written assignment by the Spauldings to appellant, and that the agreement of appellant to pay the deferred payments was omitted. The Spauldings also filed a single paragraph of cross-complaint against their codefendants, the appellee, and the persons who had signed the writing mentioned in the third paragraph of cross-complaint above as having signed the paper as officers of appellant, alleging that the writing referred to was executed for and in behalf of appellant. Appellant's demurrer to the complaint, and also its demurrer to the cross-complaint of the Spauldings, were overruled, which rulings are assigned as error. The court made a special finding of facts with conclusions of law. Appellant's motion for a new trial was overruled, and judgment rendered in conformity with the conclusions of law. The court rendered judgment in favor of appellee that he recover from Cook, Spaulding, and Spaulding and appellant the sum of $770 and costs. It was further adjudged that this amount be first collected from appellant before levying on the property of Spaulding and Spaulding, or either of them, and, in the event that the property of appellant be insufficient to satisfy the same, then one-half of the residue be collected from each of the Spauldings before levying on the property of Cook. And it is also adjudged that, if the property of appellant and the property of the Spauldings be insufficient, the sum remaining unpaid be collected from Cook.

In the assignment of errors, in the caption, the Baltes, etc., Company, Cook, and the Spauldings appear as appellants. But the Baltes Company alone assigns error. It is the sole appellant in this appeal. Merely naming a party in the caption as an appellant does not make them an appellant. Cook and the Spauldings have filed refusals to join or to be joined as appellants. The motion to dismiss the appeal because Cook and the Spauldings have not been made appellees was postponed until the hearing at this time. This is a term-time appeal. In such appeals the statute provides that “whenever a part of any number of co-parties against whom a judgment has been taken shall appeal *** it shall not be necessary to make such co-parties not appealing, parties to the appeal, and it shall not be necessary to name them as appellants or appellees in the assignment of errors, but they shall be bound by the judgment on appeal to the same extent as if they had been made parties.” This statute also gives any co-party not joining all the rights, within the year, in relation to the appeal, that he would have had if he had joined in the appeal originally. Section 647a, Burns' Rev. St. 1901. This being a term-time appeal all the parties to the judgment were in court when the appeal was taken, and must take notice of the appeal. The judgment rendered was against the Baltes Company, the Spauldings, and Cook. They were co-parties against whom the judgment was taken. One of them appeals. The statute says it shall not be necessary for him to make his co-parties, not appealing, parties to the appeal, nor to name them as appellants or appellees in the assignment of errors. Such co-party may within one year from the date of the judgment assign errors for himself, and have all questions decided which are properly presented. The statute also provides that such co-parties shall be bound by the judgment on appeal to the same extent as if they were parties. The motion to dismiss is overruled. Smith v. Wells Mfg. Co., 144 Ind. 270, 43 N. E. 131;Anderson Glass Co. v. Brakeman, 20 Ind. App. 238, 47 N. E. 937;Evans v. Odem (Ind. App.) 65 N. E. 755.

The first objection urged to the complaint is that the action is based upon a note not signed or assumed by appellant. But the complaint avers that the only consideration for the assignment of the contract by the Spauldings to appellant was a promise and agreement by appellant to perform all the requirements to be performed under the terms of the original contract, and that the only consideration for the assignment of the contract, together with the rights and privileges therein conferred, was that appellant promised and agreed to pay all the notes and installments mentioned in the contract at that time remaining unpaid. The assignment by the Spauldings to appellant was in writing, and says nothing about assuming the payment of the...