Farmers Loan & Trust Co. of Tipton v. Manning

• Decision Date: 22 April 1968
• Docket Number: No. 2,No. 20658,20658,2
• Citation: 236 N.E.2d 52,142 Ind.App. 519
• Parties: FARMERS LOAN & TRUST COMPANY OF TIPTON, Indiana, Appellant, v. Leonette MANNING, Eugene R. Chance, Administrator CTA of the Estate of Elizabeth Y. Lebo, Deceased, Appellees
• Court: Indiana Appellate Court

Page 52

236 N.E.2d 52

142 Ind.App. 519

FARMERS LOAN & TRUST COMPANY OF TIPTON, Indiana, Appellant, v. Leonette MANNING, Eugene R. Chance, Administrator CTA of the

Estate of Elizabeth Y. Lebo, Deceased, Appellees.

No. 20658.

Appellate Court of Indiana, Division No. 2.

April 22, 1968.

Rehearing Denied May 20, 1968.

Joe F. Watson, Tipton, Raymond W. Hilgedag, James M. Secrest, Indianapolis, Hilgedag & Johnson, Indianapolis, of counsel, for appellant.

John S. Grimes, Indianapolis, Joe Heaton, Tipton, Daniel J. Harrigan and Edgar W. Bayliff, Kokomo, Bayliff, Harrigan & Cord, Kokomo, of counsel, for appellees.

SMITH, Judge.

This is an appeal from an order of the Circuit Court of Tipton County removing Appellant as Administrator With Will Annexed (CTA) of the Estate of Elizabeth Y. Lebo, Deceased, and appointing the Appellee Eugene R. Chance the Successor Administrator CTA.

There are two appellees, namely Leonette Manning and Eugene R. Chance, Administrator CTA of the Estate of Elizabeth Y. Lebo, Deceased. Both appellees have prepared briefs which appear to be exact duplicates and the issues raised by both appellees appear to be identical.

Briefly, the issues presented are whether or not the appellant was

(a) appointed irregularly and improvidently;

(b) appointed against the wishes of the decedent;

(c) improperly expending estate money in resisting a petition to construe the will brought by the next of kin of decedent;

(d) in a position of conflicting interests between its position of Administrator CTA and as Trustee of a Testamentary Trust created by the will.

The issues were decided by judgment and decree entered by the Judge of the Tipton Circuit Court, which decree reads as follows:

'The Court having heard the arguments of Counsel and the briefs as submitted by Counsel having been considered and being sufficiently advised in the premises finds that the averments set forth in said petition are true and that the prayer thereof ought to be granted.

'It is therefore considered and ordered by the Court that the letters of administration granted said respondent upon said estate were improperly issued and issued against the wishes of the Decedent, and the same are hereby superseded and revoked and said Administrator With Will Annexed removed from said trust; and the Court now appoints Eugene R Chance, Administrator of said estate upon his giving bond in the sum of $200,000.00 pending accounting and otherwise qualifying according to law.'

Identical petitions to dismiss or affirm this appeal were filed by Leonette Manning and Eugene R. Chance, Administrator CTA of the Estate of Elizabeth Y. Lebo, Deceased. Our court held a ruling on these petitions in abeyance until the case was fully and finally briefed upon its merits.

In presenting the question of procedure in perfecting this appeal, briefly, the respective positions of the appellees are as follows:

1. The Tipton County Memorial Hospital is a necessary party to this appeal, and since it is not a party, all the persons interested in this appeal are not before the court in direct violation of Supreme Court Rule 2--6. The Tipton County Memorial Hospital is the beneficiary of a testamentary trust created by the will of the decedent, Elizabeth Y. Lebo.

2. The appellant has failed to invoke the jurisdiction of this court because the record does not show the filing of a proper praecipe within the time allowed by Supreme Court Rule 2--2 and affirmatively shows the filing of a 'Subsequent Praecipe' in the Tipton Circuit Court one hundred thirty days after judgment and forty-three days after this court had assumed jurisdiction of this appeal.

3. The assignment of errors presents no issue because the matters there urged as error should have been first presented to the trial court via a motion for a new trial which is in violation of Burns Indiana Statutes, § 2--2401, and Supreme Court Rules 2--6 and 1--8.

4. The transcript is incomplete and does not present this court with the documents necessary for review--including the will and petition to construe the will.

5. There is no affirmative showing in the transcript of many of the things of which appellant complains, and it is the contention of the appellees that this court is precluded from reversing the decision of the trial court on the basis of what the record does not show; and that the record must specifically show error on its face before the Appellate Court can reverse the decision of the trial court.

6. The appellant, while basing much of its argument on the alleged lack of evidence at the hearing, has wholly failed to demonstrate by a proper bill of exceptions that such was a fact.

The appellant did not file a motion for a new trial, but filed an assignment of errors, which is as follows:

'The appellant avers that there is manifest error in the judgment and proceedings in this cause, which is prejudicial to appellant, in this:

'1. The Court erred in removing the Administrator as a matter of law.

'2. The Court erred in denying the objections of the Tipton County Memorial Hospital and the Farmers Loan and Trust Company to its order removing the Administrator.

'3. That the Court's removal of the Administrator was an abuse of discretion.

'4. That the Court's removal of the Administrator was not based on sufficient evidence.'

The appellees each contend that the Tipton County Memorial Hospital is a necessary party to this appeal and, therefore, this court lacks jurisdiction to hear this appeal.

It appears that the Tipton County Memorial Hospital, Tipton, Indiana, was not made a party to this appeal; although it was a party to the proceedings in the Tipton Circuit Court, employed counsel to protect its interest, entered its appearance and filed objections to the removal of appellant, which said objections were overruled, and who joined in the original praecipe for transcript and the 'Subsequent Praecipe' contrary to Rule 2--3 of the Supreme Court of Indiana.

It is a well settled principle of law that a court of appeal cannot reverse a judgment when the necessary parties are not before the court. Rule 2--3 of the Supreme Court of Indiana provides that 'All parties to the record in the trial court shall be parties on appeal without further notice'.

It seems quite apparent that any party who entered an appearance, employed counsel, filed pleadings, is made a party to the assignment of errors, and who has a financial interest in the proceedings in the trial court, is a necessary 'party to the record'. Rule 2--3 makes it mandatory that 'all parties to the record in the trial court shall be parties on appeal without further notice'. In this case the Tipton County Memorial Hospital, Tipton, Indiana, was not made a party in the trial court.

The appellees next contend that the filing of a praecipe within the time permitted by an appeal raises a question of jurisdiction. Foerg v. Hoover (1964), 245 Ind. 208, 197 N.E.2d 524. In the case at bar the appellant was removed by order of the Tipton Circuit Court on the 8th day of July, 1966, and the appellant filed its praecipe sometime thereafter--the date of filing not being shown in the transcript. It is our opinion the burden is upon the appellant to show by the record on appeal that its praecipe was properly filed within the time allowed. The failure to meet this burden cannot be cured by indulging in inferences or presumptions in favor of the appellant. Petty, Executrix, etc. v. Friel (1960), 240 Ind. 572, 167 N.E.2d 345, 347.

On the 3rd day of October, 1966, appellant filed a Petition For Time to File Transcript and Assignment of Errors in this court, which petition was granted.

Approximately a month and a half after this court had assumed jurisdiction of this cause, the appellant filed with the Tipton Circuit Court its 'Subsequent Praecipe'. This 'Subsequent Praecipe' was filed on November 15, 1966.

From an examination of this 'Subsequent Praecipe' it appears to us the following material would not be in this transcript were it not for the 'Subsequent Praecipe':

(1) Appearance of Hilgedag, Noland & Johnson for Tipton County Memorial Hospital.

(2) Objections by Tipton County Memorial Hospital nd Farmers Loan and Trust Co. to Removal of Administrator.

(3) All proceedings had on September 30, 1966 pertaining to objections to Order Removing Administrator; Stay Order; the filing of Final Report; and the fixing of appeal bond.

(4) The petition for appointment of special attorney to defend the estate against the petition to construe will and order granting the same.

The record clearly demonstrates that this 'Subsequent Praecipe' was filed one hundred thirty days after final ruling of the court removing the appellant as Administrator With Will Annexed; and that said ruling was entered on July 8, 1966, which was forty-three days after this court had assumed jurisdiction of this cause. Supreme Court Rule 2--2 governing time for appeals reads in part as follows:

'In all appeals and reviews the assignment of errors and transcript of the record must be filed in the office of the clerk of Supreme Court within ninety (90) days from the date of the judgment or the ruling on the motion for new trial (whichever is later), unless the statute under which the appeal or review is taken fixes a shorter time, in which latter event the statute shall control.'

It is quite apparent that the second praecipe was filed too late and in any case long after this court had assumed jurisdiction. In the event a case is appealed and jurisdiction is assumed by this court, the lower court is deprived of any further jurisdiction over the action. See Westfall v. Wait (1903), 161 Ind. 449, 68 N.E. 1009.

It appears that if the first praecipe is the controlling praecipe, it is, therefore, inadequate since it did not specify the portions of the transcript to be certified to this court with sufficient particularity.

The first praecipe filed in this case reads as follows, to-wit:

'To the Clerk of...