Hubbard v. Burnet-Lewis Lumber Co.
| Decision Date | 28 June 1912 |
| Docket Number | No. 7,700.,7,700. |
| Citation | 98 N.E. 1011,51 Ind.App. 97 |
| Parties | HUBBARD v. BURNET-LEWIS LUMBER CO. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Marion County; P. W. Bartholomew, Judge.
Action by the Burnet-Lewis Lumber Company against Willard W. Hubbard. Judgment for plaintiff, and defendant appeals. Affirmed.
Emrick & Dupree, for appellant. D. A. Myers, H. A. Fenton, and J. T. Lecklider, for appellee.
Appellee brought this action on an open account to recover the price of certain lumber and to foreclose a mechanic's lien. The complaint alleges that the defendants, William L. Davis, Willard W. Hubbard, Walter J. Hubbard, and Eugene F. Manns formed a partnership for the purpose of making repairs on a certain described building and conducting a skating rink therein under the name of the Majestic Skating Rink Company; and that the lumber, for the price of which this action is brought, was sold and delivered to this partnership. The complaint also contains averments in reference to a lease from the owners of the real estate to the defendant Manns for the benefit of the partnership, and also to the filing and recording of a mechanic's lien which plaintiff seeks to foreclose. The owners of the real estate were made parties defendant, as well as all of the members of the alleged copartnership. A personal judgment was rendered against Willard W. Hubbard alone, and a decree was entered foreclosing the lien against the leasehold interest. From this judgment appellant prosecutes this, as a vacation appeal, without joining any of his codefendants.
[1][2] We are first confronted with a motion to dismiss the appeal upon the ground that all of the parties to the judgment are not made parties thereto. It has frequently been held that, in order to give this court jurisdiction of a vacation appeal, all of the parties to the judgment appealed from must be made parties to the appeal. Shuman v. Collis, 144 Ind. 333, 43 N. E. 257;Denke Walter v. Loeper, 142 Ind. 657, 42 N. E. 358.
The record in the case shows that appellant, Willard W. Hubbard, was the only defendant against whom a personal judgment was rendered. It is insisted in his behalf that he has no interest in the judgment foreclosing the lien; that the personal judgment against him may be reversed without affecting such decree of foreclosure; and that therefore the parties defendant against whom the lien was foreclosed are not necessary parties to this appeal. The judgment appealed from was in favor of appellee and against appellant Hubbard, but the finding and judgment was in favor of the other defendants.
Where an action is brought against several defendants and a judgment is rendered against one or more of them, and in favor of the others, those against whom the judgment is rendered may appeal without joining the other defendants as appellants, for the reason that such other defendants have no interest in the judgment which the appellants ask to reverse. Southern R. Co. v. Elliott, 170 Ind. 273, 82 N. E. 1051;Town of Windfall v. Bank, 172 Ind. 679, 87 N. E. 984, 89 N. E. 311;Indianapolis, etc., Co. v. Holtzclaw, 40 Ind. App. 311, 81 N. E. 1084.
The reason underlying the cases just cited applies to the question here presented. Appellantis endeavoring by this appeal to reverse the personal judgment rendered against him in which his codefendants in the trial court have no interest whatever. A reversal of this judgment cannot affect their rights in any way, and they are therefore not necessary parties to this appeal.
[3] The sufficiency of the complaint is questioned by assignment of error. The complaint states facts sufficient to show a personal liability on the part of appellant and to justify a personal judgment against him. As this was the only form of judgment entered against appellant, and as he disclaims all interest in the property against which the lien was enforced, he is in no position to object to the sufficiency of the complaint upon the ground that the facts are not sufficient to constitute a cause of action for the...
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