Hanley v. Mason
| Decision Date | 04 June 1907 |
| Docket Number | 6,116 |
| Citation | 81 N.E. 610,40 Ind.App. 180 |
| Parties | HANLEY ET AL. v. MASON ET AL |
| Court | Indiana Appellate Court |
From Wells Circuit Court; C. W. Watkins, Special Judge.
Suit by George B. Mason and another against Mary Hanley and others. From a decree for plaintiffs, defendants appeal. (For decision on merits see -- Ind.App. --.) On motion to dismiss appeal.
Motion denied.
A. W Hamilton, Abram Simmons and Frank C. Dailey, for appellants.
Heaton & Yaple, for appellees.
Appellees have filed a motion to dismiss this appeal. It appears from the record that this is a vacation appeal. Some of the appellants, who were coparties to the judgment below, were nonresidents of the State, and there is no attorney of record for said appellants. The year for appeal expired May 27 1906. The transcript, together with a proper assignment of errors, was filed in this court April 19, 1906, and notices to appellees were issued. At the same time a proper affidavit of nonresidence was filed, praying for an order for notice by publication to the nonresident appellants. Notice was ordered, and the same was published in a weekly newspaper for three consecutive weeks the first publication being on April 21, the second on April 28, and the third on May 5. Proper proof of publication was duly filed in this court on May 7, 1906. The notice, as published, directed the nonresident appellants to appear on June 15, which, as will be seen by the prior statement, was after the expiration of the year for appeal. The point made by appellees on their motion is that the notice to the nonresident appellants was not complete until the expiration of thirty days after the three weeks of publication, which would be after the expiration of the year for making the appeal, and therefore they are not properly in court, and, being coparties to the judgment, jurisdiction over the cause is thereby lost. Section 647 Burns 1901, Acts 1899, p. 5, provides: "Whenever it shall be made to appear to such court, by satisfactory proof that such other coparties, or any of them, are not residents of the State and have no attorneys of record in the court below, or that such attorneys cannot be served with such notice in the State, the court may order that notice of the pendency of the appeal be given to such nonresident coparties in some newspaper printed and published in the State, for three weeks successively; after which, if proper notice has been given the appellees, the court shall proceed in all respects as if said nonresident coparties had been personally served with notice of said appeal."
Under § 647, supra, it will be observed that, after the expiration of...
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