Belk v. Fossler

• Decision Date: 05 November 1908
• Docket Number: 6,973
• Citation: 85 N.E. 990,42 Ind.App. 480
• Parties: BELK ET AL. v. FOSSLER ET AL
• Court: Indiana Appellate Court

85 N.E. 990

42 Ind.App. 480

BELK ET AL. v. FOSSLER ET AL

No. 6,973

Court of Appeals of Indiana

November 5, 1908

From Cass Circuit Court; John S. Lairy, Judge.

Suit by Charles Fossler and others against Tacey B. Belk and others. From a decree for plaintiffs, and the cross-defendants defendant and cross-complainant Lovejoy appeals. On motion to dismiss appeal. (For decision on merits, see Ind.App. .).

Motion overruled.

Charles E. Hale and Frank V. Guthrie, for appellant Lovejoy.

Antrim & McClintic and Myers & Yarlott, for appellees.

OPINION

HADLEY, J.

Appellees sued appellants on a note and mortgage, asking for a personal judgment against appellant Tacey B. Belk, and for a decree of foreclosure against all of the defendants. Each of the defendants answered said complaint by a general denial and two set up affirmative matter. Appellants Lovejoy, Belk and Bird each filed a cross-complaint against plaintiffs and their codefendants. Issues were joined and trial had upon said complaint and cross-complaint, and judgment rendered in favor of appellees for a personal judgment against appellant Belk and a decree against all of the other defendants foreclosing the mortgage and declaring appellees' mortgage to be prior to all other mortgages set up in the different cross-complaints. Judgment was also rendered in favor of all of the defendants against their codefendant Lovejoy, upon her cross-complaint. Said Lovejoy prosecutes this appeal, joining her codefendants as appellants, and making the plaintiffs in the original suit appellees.

Motion has been made to dismiss the appeal for the reason that all of the appellants except Lovejoy should have been made appellees. This is a vacation appeal, and it is well settled that in vacation appeals a party appealing must make all of his coparties to the judgment coappellants in the appeal giving proper notice to such appellants of such appeal. This proposition is not disputed, and the determination of the question at issue hinges upon who are coparties.

In the case before us, appellees obtained a decree against all of the defendants upon every contested issue. To this decree all of the appellants were coparties, and from it each of said parties had the right of appeal. The appellants, other than Lovejoy, obtained judgment in their favor against appellant Lovejoy. From this only Lovejoy had the right of appeal, and from this somewhat complicated situation it is rather difficult to apply the rule of appeals as before laid down. The true and equitable test would seem to be the rule as laid down in some of the decisions, "that all parties who are entitled to appeal from the judgment must be...