Cont'l Ins. Co. v. Gue

• Decision Date: 18 April 1912
• Docket Number: No. 7,558.,7,558.
• Parties: CONTINENTAL INS. CO. v. GUE et al.
• Court: Indiana Appellate Court

51 Ind.App. 232

98 N.E. 147

CONTINENTAL INS. CO.

v.GUE et al.

No. 7,558.¹

Appellate Court of Indiana, Division No. 2.

April 18, 1912.

Appeal from Circuit Court, Martin County; H. Q. Houghton, Judge.

Action by Clyde Gue against the Continental Insurance Company and another. From a judgment for plaintiff, defendant insurance company appeals. Appeal dismissed.

Carlos T. McCarty, for appellant. Frank E. Gilkison, for appellees.

ADAMS, J.

The appellant issued its policy of insurance to Clyde Gue and Louisa Gue, as owners of a certain dwelling house and contents, indemnifying them against loss or damage by fire for a certain term. Within the life of the policy the house was wholly destroyed by fire, and this action was instituted by Clyde Gue against the appellant and Louisa Gue.

The facts relating to the contract of insurance, the loss and proof of loss, are all set out in the complaint. It is also averred that at the time the insurance was written and at the time the building was destroyed the plaintiff, Clyde Gue, was the sole owner of such building. In this complaint the plaintiff only sought to recover for the loss of the building, and averred that Louisa Gue had no interest therein, and that she was made a party defendant to answer for any interest which she might have or claim to have. The defendant Louisa Gue, who was the stepmother of the plaintiff, appeared in person, and filed answer, wherein she admitted the truth of the averments of the complaint. As to appellant, the cause was put at issue by answers and replies, and submitted to a jury. Verdict and judgment for plaintiff against appellant in the sum of $346.01, and against Louisa Gue that she had no interest in the property destroyed. In appellant's assignment of errors in this court Clyde Gue and Louisa Gue are made appellees. This is a vacation appeal, and notice thereof was issued by the clerk of this court to both Clyde Gue and Louisa Gue as appellees. The appellee, Clyde Gue, has filed a motion to dismiss the appeal, on the ground that this court has no jurisdiction, in that the appellee Louisa Gue was not made an appellant in the assignment of errors, and notified as an appellant. As this motion presents a jurisdictional question, it must be determined before the case can be considered upon its merits.

[1] It is well settled that there is no common-law right of appeal in this state. That right is one granted only by statute, and must be invoked and presented in the manner and form provided by statute.

[2] In a vacation appeal, the same must be taken pursuant to section 674, Burns 1908, and, in order to bring the appeal within the jurisdiction of this court, all coparties to the judgment or judgment defendants must be joined as appellants. If not so joined, we have no jurisdiction to determine the case upon its merits, and the appeal must be dismissed, upon the motion of a party or by the court upon its own motion. Brown v. Brown, 168 Ind. 654, 656, 80 N. E. 535;Crist v. Wayne, etc., Ass'n, 151 Ind. 260, 57 N. E. 545;Michigan Mutual Life Ins. Co. v. Frankel, 151 Ind. 534, 539, 50 N. E. 304;Abshire v. Williamson, 149 Ind. 248, 252, 48 N. E. 1027. If all coparties to the judgment below are not made appellants on appeal, there is no compliance with the requirements of the statute; and making any of such coparties appellees is no better than not making them parties at all. Gregory v. Smith, 139 Ind. 48, 53, 38 N. E. 395;Lee v. Mozingo, 143 Ind. 667, 671, 41 N. E. 454. There can be but one appeal from the same judgment, and, as all parties affected by the judgment have a right of appeal, the persons against whom the judgment is rendered must be made parties to the appeal as coappellants; otherwise no jurisdiction is conferred upon the appellate tribunal. Vordermark v. Wilson, 142 Ind. 142, 147, 39 N. E. 441;Benbow v. Garrard, 139 Ind. 571, 573, 39 N. E. 162; Elliott's App. Proc. § 144.

By the term “coparties,” as used in the statute (section 674), supra, is meant coparties to the judgment or all the parties against whom the judgment is rendered. Gregory v. Smith, supra; Benbow v. Garrard, supra; Hadley v. Hill, 73 Ind. 442. A defendant against whom a judgment is rendered on default has a right to appeal without seeking to set aside the default, and may present for review the sufficiency of the facts stated in the complaint to constitute a cause of action against him and the jurisdiction of the court. Lee v. Mozingo, supra; Wilcox v. Monday, 83 Ind. 335. It has been held that an insurance company in an action against it and another claiming the proceeds of a policy as against the plaintiff, where the insurance company filed an interpleader asking an order to pay the full amount into court and be discharged from further liability, and where an order was made, the money paid in as directed, and a general judgment rendered, the insurance company was a necessary party appellant to the appeal, as there was no judgment for costs in favor of the interpleader. Holderman v. Wood, 34 Ind. App. 519, 522, 73 N. E. 199.

Few questions have been more fully considered by our Appellate Court than the one presented by this motion. In addition to the authorities cited in support of the principles herein announced, we call attention to the following: Haymaker v. Schneck, 160 Ind. 443, 67 N. E. 181;Smith v. Fairfield, 157 Ind. 491, 493, 61 N. E. 560;Owen v. Dresback, 154 Ind. 393, 394, 56 N. E. 22, 848;McKee v. Root, 153 Ind. 314, 54 N. E. 802;Stults v. Gibler, 146 Ind. 501, 45 N. E. 340;Roach v. Baker, 145 Ind. 330, 43 N. E. 932, 44 N. E. 303;Midland Ry. Co. v. St. Clair, 144 Ind. 363, 42 N. E. 214;Denke-Walter v....