Hollingsworth v. Hollingsworth

• Decision Date: 09 October 1902
• Citation: 64 N.E. 900,29 Ind.App. 556
• Parties: HOLLINGSWORTH v. HOLLINGSWORTH.
• Court: Indiana Appellate Court

29 Ind.App. 556

64 N.E. 900

HOLLINGSWORTH

v.HOLLINGSWORTH.

Appellate Court of Indiana, Division No. 2.

Oct. 9, 1902.

Appeal from circuit court, Hendricks county.

Action by John T. Hollingsworth, as administrator, etc., against Asbury Hollingsworth. An interlocutory judgment directing partition of certain property was entered, and defendant appeals. Dismissed.

Miles & Easley, for appellant. Hogate & Clark and Otis E. Gulley, for appellee.

COMSTOCK, J.

The appellee, John T. Hollingsworth, administrator of the estate of Murza N. Hollingsworth, deceased, filed in the Hendricks circuit court his petition, asking that the interest of Mary Ann Hollingsworth, widow of said decedent, in the real estate left by her husband, be set off to her so that he could subject to sale a part of the remainder of said land to make assets with which to pay debts of said decedent. To this petition the appellant filed four paragraphs of answer and a cross-complaint. Demurrers were sustained to the second, third, and fourth paragraphs of answer and to the cross-complaint, the appellant excepting. The court found generally for the plaintiff on his cross-complaint; ordered that partition be made of the real estate described in his complaint by setting off to the widow one-third in value thereof; appointed commissioners to make such partition; directed that they report their partition at the next term of the Hendricks circuit court, and in their report to embody a description of the lands set off to said widow,-to all of which appellee excepted, and prayed an appeal. Appellant assigns as error the sustaining of the appellee's demurrer to each of the second, third, and fourth paragraphs of his answer and to his cross-complaint.

Appeals are only authorized by statute from final judgments. Section 644, Burns' Rev. St. 1894 (section 632, Horner's Rev. St. 1897). To this general rule there are exceptions authorizing appeals from an interlocutory order in the following cases: (1) For the payment of money to compel the execution of any instrument in writing, or the delivery or assignment of any securities, evidences of debt, documents, or other things in action; (2) for the delivery of the possession of real property or the sale thereof; (3) granting or dissolving or overruling motions to dissolve an injunction in term, and granting an injunction in vacation; (4) orders and judgments or writs of habeas corpus made in term or vacation. See section 658, Burns' Rev. St. 1894 (section 646, Horner's Rev. St. 1897). The case before us does not come within the exceptions. The judgment from which an appeal may be taken must make a final disposition of the cause. Branham v. Railroad Co., 7 Ind. 524;Reese v. Beck, 9 Ind. 238;Spaulding v. Thompson, 12 Ind. 477, 74 Am. Dec. 221;Melcher v. Frendenburg, 18 Ind. 180;Wood v. Wood, 51 Ind. 141;Champ v. Kendrick, 130 Ind. 545, 30 N. E. 635;Thomas v. Railway Co., 139 Ind. 462, 39 N. E. 44;City of Jeffersonville v. Tomlin, 7 Ind. App. 681, 35 N. E. 29;Masten v. Foundry Co., 19 Ind. App. 633, 49 N. E. 981;Davis v. Davis, 36 Ind. 160;Kern v. Maginniss, 41 Ind. 398;Rennick v. Chandler, 59 Ind. 354;Voorhees v. Manufacturing Co., 140 Ind. 220, 39 N. E. 738. In Jackson v. Myers, 120 Ind. 505, 22 N. E. 90, 23 N. E. 86, cited by appellant, the court held that, where an action is one primarily for partition, an appeal will not lie from an interlocutory order of the court appointing commissioners to make partition; and that in the case then under consideration the orders...