Haney v. Denny's Estate, 19769

• Citation: 183 N.E.2d 346,135 Ind.App. 317
• Decision Date: 13 June 1962
• Docket Number: No. 19769,19769
• Parties: Troy HANEY, Appellant, v. ESTATE of Noble F. DENNY, Deceased, Appellee.
• Court: Indiana Appellate Court

Page 346

183 N.E.2d 346

135 Ind.App. 317

Troy HANEY, Appellant, v. ESTATE of Noble F. DENNY, Deceased, Appellee.

No. 19769.

Appellate Court of Indiana, In Banc.

June 13, 1962.

Sidney Horn, Paul E. Blackwell, Indianapolis, Eugene B. Burns, Lebanon, for appellant, Rochford, Blackwell & Rochford, Indianapolis, of counsel.

Scifres & Hollingsworth, Ben M. Scifres, Roscoe Hollingsworth, Lebanon, for appellee.

KELLEY, Chief Justice.

The transcript and Assignment of Errors in this appeal were filed and submitted on December 28, 1961. Said Assignment of Errors names as appllee 'Estate of Noble F. Denny, Deceased.' No other appellee was named either in the title or the body of the Assignment of Errors.

Pursuant to extension of time duly granted therefor, appellant's brief was filed on February 28, 1962. On March 13, 1962 the designated appellee filed petition for extension of time to file brief and the same was granted to and including May 9, 1962.

On March 29, 1962 Gladys M. Denny, Executrix of the Estate of Noble F. Denny, deceased, filed a petition to withdraw said petition for extension of time to file brief and for permission to file motion to dismiss the appeal. Said petition was denied on April 6, 1962. Thereafter, on April 17, 1962 a brief, entitled 'Appellee's Brief' was filed and a motion to dismiss the appeal was filed by said Gladys M. Denny, Executrix, etc.

The motion to dismiss the appeal is predicated upon the ground that at all times since the filing of the original complaint in the Boone Circuit Court and down to the present time, said Gladys M. Denny has been, and is, the duly appointed qualified and acting executrix of the Estate of Noble F. Denny, deceased, and that she is not named or made a party appellee in the Assignment of Errors.

The record reflects that appellant's claims in the estate proceedings of said decedent were filed against: 'Gladys Denny, Executrix', and that the judgment after trial and finding by the court, without jury, was as follows:

'* * * the court now finds for the defendant executrix and against the claimant on said claims * * *. It is therefore, considered, ordered and adjudged by the court that the claimant take nothing, by his claims and that the defendant executrix have and recover her costs herein.' (Emphasis supplied).

Thus, it is apparent that the judgment was rendered for and in favor of the executrix, Gladys Denny, and that, under Supreme Court Rule 2-6, she is the party to the judgment 'whose interests are adverse' to the interests of the appellant. Her interests and duties, as executrix of said estate, are vitally and intimately affected by said judgment. If the judgment had been in favor of appellant, said Gladys Denny, as such executrix, would have been the only party capable of taking and perfecting an appeal therefrom. She, as such executrix, under said Rule 2-6, should have been named as a party appellee in the assignment of errors, which is considered as appellant's complaint in this court.

The said judgment was rendered on June 9, 1961 and on July 7, 1961, appellant filed his motion for a new trial. Said motion was overruled on October 3, 1961. Appellant's time for perfecting his appeal expired on January 2, 1962.

On April 19, 1962 appellant filed herein a motion to amend the assignment of errors 'by inserting in the title thereof, as an appellee, Gladys Mae Denny, Executrix of the Estate of Noble Frank Denny, Deceased.' In support of said motion, appellant cites 'Jasper & Chicago Motor Express, Inc. v. Ziffrin Truck Lines, Inc. (May, 1961), 175 N.E.2d 20,' and says that the Supreme Court therein, in effect, held that the failure to name a party in the assignment of errors is not jurisdictional and that the appellant is entitled to amend his assignment of errors.

The Supreme Court, in said Ziffrin case, by a Per Curiam opinion, disapproved our statement in the same case (see Ind.App., 172 N.E.2d 586), to the effect that the failure to name a party in the assignment of errors is jurisdictional. 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. Generally, see the following, which constitutes only a few among many: Keiser v. Howard (1927), 199 Ind. 137, 155 N.E. 707; Hayes et al. v. Adams et al. (1943) 221 Ind. 480, 49 N.E.2d 345; Nordyke & Marmon Co. v. Fitzpatrick (1904), 162 Ind. 663, 71 N.E. 46; Voss v. Balz (1932), 203 Ind. 221, 179 N.E. 552; Second National Bank of Robinson, Ill. v. Scudder (1937), 212 Ind. 283, 6 N.E.2d 955; Ex Parte Fenning et al., Ex Parte Whipple (1939), 216 Ind. 298, 23 N.E.2d 678; Hildebrand v. Strickland (1935), 100 Ind.App. 443, 194 N.E. 190; In re Wiles, In re Gibbs (1935), 208 Ind. 271, 195 N.E. 572; Smith v. Holtz (1901), 26 Ind.App. 692, 60 N.E. 728; Jenkins v. Steele (1913), 55 Ind.App. 11, 102 N.E. 139, 103 N.E. 365; Estate of Peden, Deceased v. Noland (1873), 45 Ind. 354; The Estate of Thomas v. Service (1883), 90 Ind. 128; Dallam v. Stockwell's Estate (1904), 33 Ind.App. 620, 71 N.E. 911; Indiana Construction Material Co. v. Gelopulos (1961), Ind.App., 172 N.E.2d 72; Cook v. Albrecht (1957), 127 Ind.App. 457, 143 N.E.2d 121; Baugher et al. v. Hall, Receiver, etc. (1958), 238 Ind. 170, 147 N.E.2d 591; Otolski v. Estate of Nowicki (1959), 129 Ind.App. 492, 158 N.E.2d 296; Wilson v. Kings Estate (1961), Ind.App., 171 N.E.2d 485; Lafayette Chapter etc. v. City of Lafayette et al. (1959), 129 Ind.App. 425, 157 N.E.2d 287; Russell v Moore (1960), 130 Ind.App. 351, 164 N.E.2d 670; Allen et al. v. Review Board of Ind. Employ. Sec. Div. (1959), 130 Ind.App. 165, 162 N.E.2d 689; McArdle v. Board of Zoning Appeals (1960), Ind. App., 167 N.E.2d 608.

Said Rule 2-6 provides, in part:

'Failure properly to name parties will not be treated as jurisdictional.' (Our emphasis).

In Allmon et al. v. Review Board, etc., et al. (1953), 124 Ind.App. 212, 215, 116 N.E.2d 115, 116, we held that said quoted part of said rule referred to 'misspelling of names, initials or where incorrect given names are listed or other similar means of identification. It does not refer to where there is a total lack or failure on the part of those taking an appeal to name in the assignment of errors the proper party appellants.'

In 1958 our Supreme Court, then composed of the same membership as at present, with one exception, in Baugher et al. v. Hall, Receiver, etc., supra, a Per Curiam opinion, quoted from and impliedly approved the holding in said Allmon case, supra, and noted that 'considerable confusion has resulted in the interpretation and effect of failure to name parties on appeal' and that 'the situation should now be clarified.' The clarification made thereby was that said Rule 2-6 'does not dispense with the necessity of naming in the assignment of errors 'all parties to the judgment seeking relief by the appeal' and 'all parties to the judgment whose interests are adverse to the interests of the appellants.'' The appeal was dismissed for the failure to appellant to name the Receiver in the assignment of errors, there being 'no amendment sought or made within time to the assignment of errors.' (Emphasis supplied).

Said Baugher case, supra, further held that where appellant fails to name, as appellees, all parties to the judgment who have an adverse interest to appellant, 'this court does not acquire jurisdiction of the appeal. * * * This is a requirement which, of course, can not be waived nor modified by this court.' (Our emphasis).

However, by the Per Curiam opinion in Jasper &Chicago Motor Express, Inc. v. Ziffrin Truck Lines (175 N.E.2d 20), supra, the Supreme Court did, in fact, modify the rule adhered to in the Baugher v. Hall case, supra, and, in effect, held that the failure to name a party in the assignment of errors is not jurisdictional. The court proceeded further to declare a denial of transfer because 'after the appellant's attention was called to the defect in the parties named in the assignment of errors, no application or attempt was made to amend', as provided in said Rule 2-6. (Emphasis supplied).

The Supreme Court, in said Ziffrin case last referred to, made no observation as to when or within what time the application or petition to amend the assignment of errors with respect to parties should be made or tendered. Should such application to amend be made prior to the expiration of the time provided or allowed for perfecting the appeal? Can it be made at any time before the opinion in the case is handed down? Can it be made as a part of the petition for a rehearing? Under said Rule 2-6 does the appellate tribunal possess a discretion as to the time within which the application to amend must be made? If so, can such discretion be varied with respect to each case? By what rule are counsel for the parties to be guided? Shall there exist...