Harrison v. Western Const. Co.

• Decision Date: 07 January 1908
• Docket Number: No. 6,145.,6,145.
• Citation: Harrison v. Western Const. Co., 41 Ind. App. 6, 83 N. E. 256 (Ind. App. 1908)
• Parties: HARRISON et al. v. WESTERN CONST. CO.
• Court: Indiana Appellate Court

41 Ind.App. 6

83 N.E. 256

HARRISON et al.

v.WESTERN CONST. CO.

No. 6,145.

Appellate Court of Indiana, Division No. 2.

Jan. 7, 1908.

Appeal from Superior Court, Marion County; J. L. McMaster, Judge.

Action by the Western Construction Company against Russell B. Harrison, trustee, Mary Harrison McKee, and another. Judgment for plaintiff, and the defendants named appeal. Dismissed.R. B. Harrison and Harrison Cale, for appellants. Wymond J. Beckett, for appellee.

RABB, J.

This action was brought in the court below against the appellants Russell B. Harrison, Mary Harrison McKee, and Elizabeth Harrison. The complaint charges that these parties are the owners and tenants in common of certain real estate in the city of Indianapolis, and asserts a street improvement lien against this property. Such proceedings were had in the court below as resulted in a finding and decree against all of said parties, declaring a lien on said premises in appellee's favor, and directing the sale of the premises to pay and satisfy the same. The appellants, Russell B. Harrison and Mary Harrison McKee, have taken a vacation appeal to this court, without making a party thereto their codefendant Elizabeth Harrison, and while no formal motion to dismiss the appeal has been made in this court, appellee insists that it is the duty of this court to dismiss such appeal for want of jurisdiction.

It has been decided so often by the Supreme and Appellate Courts that, unless all parties affected by the judgment appealed from are before the Supreme or Appellate Courts, such court has no jurisdiction to hear and determine an appeal that the question is not an open one. Vordermark v. Wilkinson, 142 Ind. 142, 39 N. E. 441;Rosenbower v. Schuetz, 141 Ind. 44, 40 N. E. 256;Gregory v. Smith, 139 Ind. 48, 38 N. E. 395;Michigan Mutual, etc., v. Frankel, 151 Ind. 534, 50 N. E. 304;Kemp v. Prather, 36 Ind. App. 382, 75 N. E. 673;Polk v. Johnson, 167 Ind. 548, 78 N. E. 652, 79 N. E. 491;Nordyke-Marmon Co. v. Fitzpatrick, 162 Ind. 663, 71 N. E. 46;Smith v. Fairfield, 157 Ind. 491, 61 N. E. 560;Inman v. Vogel, 141 Ind. 138, 40 N. E. 665;Hutts v. Martin, 141 Ind. 701, 41 N. E. 329. In the case of Smith v. Fairfield, supra, the Supreme Court say: “To give this court jurisdiction of an appeal taken in vacation, the assignment of errors must contain the full names of all parties affected by the judgment, since we have no power to disturb a joint judgment without disturbing it as to all, and have no jurisdiction to disturb it as to those who are not parties to the appeal.” In the case of Michigan Mutual, etc., v. Frankel, supra, the court say: “The fact that appellant did not move to dismiss his appeal until after the submission of the cause to this court and the filing of her brief on the merits of the action cannot serve as a waiver nor a bar to the dismissal of the appeal. *** The question is one relating to jurisdiction, and is therefore a matter which...