Hays v. Pugh
Decision Date | 20 May 1902 |
Docket Number | 19,526 |
Citation | 64 N.E. 13,158 Ind. 500 |
Parties | Hays v. Pugh, Trustee, et al |
Court | Indiana Supreme Court |
From Hancock Circuit Court; C. G. Offutt, Judge.
Action to quiet title by Emma Hays against Joseph W. Pugh, trustee for the benefit of the creditors of Samuel Cassell, and others. From a judgment for defendant, plaintiff appeals. Transferred from the Appellate Court, under § 1337u Burns 1901.
Appeal dismissed.
A. C Carver, M. E. Forkner and G. D. Forkner, for appellant.
W. A Kittinger and W. S. Diven, for appellees.
This action was brought by appellant against appellees to quiet title to real estate described in the complaint. A trial of the cause resulted in a judgment in favor of appellees for costs, and that appellant take nothing by her said action.
The Alexandria National Bank, one of the appellees, insists that as this is a vacation appeal, it must be dismissed because Joseph W. Pugh, trustee, one of the appellees, died after the transcript was filed and before he was served with notice of the appeal, and his successor, Jacob L. Crouse, has not been made an appellee, and served with notice of the appeal.
The transcript was filed December 3, 1900, the day before the expiration of the year allowed for appeal. Process was issued by the clerk December 3, 1900, and returned January 8, 1901 showing service on all the resident appellees except Joseph W. Pugh, trustee for the benefit of the creditors of Samuel Cassell, who died December 28, 1900, without any notice being served upon him. The other appellees being non-residents, notice was given them by publication.
Jacob L. Crouse was appointed trustee for the creditors of Samuel Cassell, to succeed Pugh, deceased, on January 4, 1901. No steps were taken to make said Crouse, trustee, an appellee, or to give him notice of the appeal until July 1, 1901, when appellant filed an application suggesting the death of said Pugh, trustee, and asking that Crouse, his successor as trustee, be substituted, and that notice be issued and served upon him. On October 9, 1901, said application was denied by the Appellate Court where the appeal was then pending. Said Crouse, trustee, has never been made an appellee or brought into court.
It has been uniformly held by this court that the parties to a judgment appealed from, adverse to appellant, must be made appellees; that in vacation appeals this court only acquires jurisdiction over the parties to a judgment adverse to appellant who are named as appellees in the assignment of errors and who appear, or are properly served with notice. Capital Nat. Bank v. Reid, 154 Ind. 54, 56, 55 N.E. 1023; Ex parte Sullivan, 154 Ind. 440, 56 N.E. 911; McClure v. Shelburn, etc., Co., 147 Ind. 119, 121, 122, 46 N.E. 349; Garside v. Wolf, 135 Ind. 42, 43, 44, 34 N.E. 810, and cases cited; Loucheim v. Seeley, 151 Ind. 665, 666, 667, 43 N.E. 646; Abshire v. Williamson, 149 Ind. 248, 251, 252, 48 N.E. 1027, and cases cited; National, etc., Assn. v. Huntsinger, 150 Ind. 702, 50 N.E. 381; State, ex rel., v. East, 88 Ind. 602; Hunderlock v. Dundee, etc., Co., 88 Ind. 139; Ewbank's Manual, § 149.
It is also settled by the above authorities that, if parties to the judgment adverse to appellant are not made appellees, or in a vacation appeal if made appellees, do not appear, and are not notified as required by law, this court has no jurisdiction to determine the appeal upon its merits.
Rule thirty-six of the Supreme and Appellate Courts, in force since November 26, 1900, provides that "where a case appealed in vacation has been on the docket ninety days or more, and there is no...
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