Denke-Walter v. Loeper

• Decision Date: 10 December 1895
• Docket Number: 17,428
• Citation: 42 N.E. 358,142 Ind. 657
• Parties: Denke-Walter v. Loeper et al
• Court: Indiana Supreme Court

42 N.E. 358

142 Ind. 657

Denke-Walter v. Loeper et al

No. 17,428

Supreme Court of Indiana

December 10, 1895

From the Marion Superior Court.

The appeal is dismissed.

Herod & Herod, for appellant.

W. A. Ketcham, for appellees.

OPINION

Monks, J.

Ida M. Loeper, one of appellees, brought this action against her co-appellees and appellant to quiet title to real estate.

Cross-complaints were filed by certain of the appellees to quiet title to a part of the same real estate.

The cause was tried and judgment rendered quieting the title to said real estate, as prayed for in the complaint and in the cross-complaint. Judgment was also rendered against appellants, Mary C. Denke-Walter and Frederick W. Denke-Walter (who is made an appellee in this court) for costs.

It is settled law in this State that all joint-judgment defendants in the court below must be made co-appellants in this court in all vacation appeals or the appeal will be dismissed for want of jurisdiction. Acts 1895, p. 179; Elliott App. Proced., section 144; Inman v. Vogel, 141 Ind. 138, 40 N.E. 665, and cases cited; Walsh v. Brockway, 13 Ind.App. 70, 40 N.E. 29.

There can be but one appeal from the same judgment, and when the same is not a term time appeal all co-parties entitled to appeal must be joined as co-appellants. Acts 1895, p. 179; Inman v. Vogel, supra; Gregory v. Smith, 139 Ind. 48, 38 N.E. 395, and cases cited.

The appeal in this case was not a term time appeal and is not therefore governed by the provisions of the acts approved March 9, 1895. Acts 1895, p. 179.

Frederick W. Denke-Walter was a co-party and joint-judgment defendant with appellant in the court below, and should have been made co-appellant in this court. This not having been done the appeal must be dismissed. Gregory v. Smith, supra; Inman v. Vogel, supra, and cases cited; Midland R. W. Co. v. St. Clair, 144 Ind. 363, 42 N.E. 214.

The appeal is therefore dismissed.