Gregory v. Smith
| Decision Date | 18 October 1894 |
| Docket Number | 17,313 |
| Citation | 38 N.E. 395,139 Ind. 48 |
| Parties | Gregory v. Smith et al |
| Court | Indiana Supreme Court |
From the Boone Circuit Court.
Appeal dismissed.
P. H Dutch, for appellant.
C. L Holstein and C. E. Barrett, for appellees.
The appellee, Harry C. Smith, was the sole plaintiff in the court below, and his coappellees, Samuel Small, John J. Carriger, Sarah F. Carriger, Susan A. Burke, Alpheus Burke, and the appellant, Thomas Gregory, were the defendants below.
The complaint sought to foreclose a mortgage on a lot in Thorntown, Boone county, Indiana, executed to secure a promissory note for $ 225 and 5 per cent. attorney's fees, both of which had been executed by said Small to said John J. Carriger, which had been indorsed by Carriger, said Smith, plaintiff, being a remote indorsee. Also, a personal judgment over was sought against Small and John J. Carriger.
The other defendants below were charged with having some interest in the mortgaged real estate, which was junior and subject to the mortgage. Issues were formed upon the complaint and the cross-complaints of John J. Carriger, that of Sarah F. Carriger, that of Susan A. Burke and Alpheus Burke, and the cross-complaint of appellant, Thomas Gregory.
The trial resulted in a finding and judgment against Samuel Small and John J. Carriger for principal, interest and attorney's fees, amounting to $ 327, and a decree foreclosing the mortgage against all the defendants.
The appellant, Thomas Gregory, being one of the defendants below, appeals and assigns error, making himself the only appellant, and he makes Smith plaintiff below and all the other defendants below, appellees to his assignment of error.
The appellees, in the aforementioned assignment of errors, Susan A. Burke and Alpheus Burke, have made a separate assignment of errors, in which they are named alone as appellants, and the plaintiff below, Smith, and all the other defendants below are named as appellees, including Thomas Gregory.
Two notices of appeal have been issued by the clerk of this court at the instance of the appealing parties, one to Susan A. Burke and Alpheus Burke, notifying them that Thomas Gregory, Susan A. Burke et al. had filed in said clerk's office the transcript, etc., and requiring them to appear in this court, etc. The other is a notice to Smith, Small, John J. and Sarah F. Carriger and Thomas Gregory, of the filing of the transcript by Thomas Gregory, Susan A. Burke et al., and requiring them to appear in this court and defend the appeal as in the case of the other notice. It thus appears that Gregory and the Burkes have been made appellants and appellees both, as far as their counsel is able to make them so, in the same case.
The appellee Smith has moved to dismiss the appeal, for the reason that all the coparties have not been properly brought before this court: 1. Because the proper notice to coparties has not been served. 2. Because the proper parties have not been made in the assignment of errors.
Section 647, R. S. 1894 (R. S. 1881, section 635), provides that
It has been held that "coparties" means coparties to the judgment and not coparties plaintiff or defendant, either in the complaint or cross-complaint. Hadley v. Hill, 73 Ind. 442.
It is essential that all persons whose interests may be affected by the judgment, on appeal, should be made parties to the appeal in some appropriate mode. Only one appeal can be prosecuted under the provisions of the section just quoted, from a joint judgment by those who are parties to it, and yet all must be before the court to which the case is carried. Elliott's App. Proced., section 138.
No doubt the policy and object of the statute are to give all judgment defendants in a joint judgment a full and fair opportunity to be heard on appeal, and at the same time prevent a multiplicity of appeals. The statute treats such a judgment as a unity, no matter how many parties may be affected by it. The statute requiring notice to be served on all other coparties when a part of them appeal, fairly implies that the parties thus to be notified must be made parties to the appeal by name.
The question arises, then, are they to be made parties as appellants or as appellees?
The language, "unless they appear and decline to join, they shall be regarded as having joined, and shall be liable for their due proportion of the costs," clearly implies that they are to be regarded, in the event specified, as having joined in the appeal as appellants. We say as appellants, because it would certainly be an anomaly for an appellee to appeal or join in an appeal. If such a thing can be done, then it is possible for the same party to be both plaintiff and defendant, to be both appellant and appellee in the same appeal, as the counsel who is managing this appeal is attempting to accomplish. We can not say he is appellant's counsel, because he appears for some parties who are appellees as well as appellants. The language, "if they decline to join, their names may be struck out on motion," clearly implies that such coparties names are to appear in the assignment of errors as appellants.
If their names are not to be in the assignment of errors as coappellants along with the appealing coparty, then there would be no necessity for striking out their names on their refusal to join. The language, "and they shall not take an appeal afterwards," that is after their names are stricken out, on their refusal to join, plainly implies that they have been made coappellants with the appealing coparty, and afforded an ample opportunity of bringing forward any complaint against the judgment below they may have and have declined to so complain, and for that reason such proceeding, it is provided, bars them from ever afterwards taking an appeal. If they have not been afforded that opportunity, then the appeal does not bar them from afterwards appealing. If the appeal is taken in such a manner as not thus to bar all the coparties to the joint judgment; that is, the joint judgment defendants, then this court...
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