Farmers Mut. Ins. Co. of Huntington, Wabash and Wells Counties v. Summers
| Decision Date | 17 March 1966 |
| Docket Number | No. 20280,No. 2,20280,2 |
| Citation | 143 Ind.App. 446,214 N.E.2d 800 |
| Parties | FARMERS MUTUAL INSURANCE COMPANY OF HUNTINGTON, WABASH AND WELLS COUNTIES, American States Insurance Company, Indianapolis, Indiana, Appellants, v. John W. SUMMERS, Appellee |
| Court | Indiana Appellate Court |
Spencer & Robinson, Huntington, for appellant, Farmers Mut. Ins. Co., Howard J. DeTrude, Jr., and Mark W. Gray, of Armstrong, Gause, Hudson & Kightlinger, Indianapolis, for appellant, American States Ins. Co.
Russel J. Wildman, of Cole, Wildman & Cole, Peru, for appellee.
This case is presently before the court on the motions to dismiss of the appellant American States and the appellee Summers. These motions contend that American States was improperly named as an appellant for it did not file a motion for a new trial. In addition, the motions contend that American States' interest is adverse to that of the appellant Farmers Mutual. These motions further contend that under Supreme Court Rule 2-6 this appeal should be dismissed as American States was improperly named as an appellant rather than as an appellee.
In substance this rule provides that all parties to the judgment seeking relief shall be named as appellants and all parties to the judgment with adverse interests as to the appellants shall be named as appellees. Failure to properly name the parties is not jurisdictional and amendments are to be permitted at the court's discretion. In accordance with this rule, we agree that American States should have been named as an appellee.
Previous to this rule (1943) there was much confusion as to what failures in this regard were jurisdictional and what were not. Even after the rule, this court and the Supreme Court continued to treat a complete failure to name [143 INDAPP 448] a party to the appeal from the lower court's judgment as jurisdictional. See Allmon et al. v. Review Board, etc., et al. (1953), 124 Ind.App. 212, 116 N.E.2d 115 and Baugher et al. v. Hall, Receiver, etc. (1958), 238 Ind. 170, 147 N.E.2d 591.
However, these matters were partially clarified in Jasper & Chicago Mtr. Exp. v. Ziffrin Truck Lines (1961), 241 Ind. 643, 175 N.E.2d 20, and further in Haney v. Denny's Estate (1962), 135 Ind.App. 317, 183 N.E.2d 346, 193 N.E.2d 648. In the latter, this court stated at p. 321, 193 N.E.2d at p. 348:
'It may be fairly said, we think, that by its Per Curiam opinion in said Ziffrin case (as reported in said 175 N.E.2d 20) the Supreme Court evinced its intention of departing from the rule generally adhered to by both the Supreme Court and our court before and after the amendment of Rule 2-6 in 1943, to the effect that the failure to name parties, either as appellants or appellees, is fatal to the appeal on jurisdictional grounds, except where modified by statute.' (our emphasis)
The court continued by stating that where the party in error attempted to correct the failure by amendment after due notice of said error, this should be permitted. It definitely was not jurisdictional in the first instance.
It should be noted that these cases are addressed to the problem of 'the complete failure to name parties either as appellants or appellees'. In the case at bar we are not concerned with a complete failure to name all the parties to an appeal; here it is only an error in labeling a party as an appellant rather than as an appellee.
Even before Rule 2-6 was presented, our Supreme Court stated that errors in misnaming parties as appellants or appellees were not jurisdictional. In Buchanan v. Morris (1926), 198 Ind. 79, 151 N.E. 385, the court denied a motion to dismiss on these grounds and continued to decide the case on its merits. Our court has reaffirmed[143 INDAPP 449] this in Cook v. Albrecht et al. (1957), 127 Ind.App. 457, at p. 459, 143 N.E.2d 121 at p. 122, where this court stated:
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