Kaufmann v. Preston

• Decision Date: 11 April 1902
• Citation: 158 Ind. 361,63 N.E. 570
• Parties: KAUFMANN et al. v. PRESTON et al.
• Court: Indiana Supreme Court

158 Ind. 361

63 N.E. 570

KAUFMANN et al.

v.PRESTON et al.

Supreme Court of Indiana.

April 11, 1902.

Appeal from circuit court, Noble county; Joseph W. Adair, Judge.

Suit by Barbetta Kaufmann and others, as executors of the will of Joseph Kaufmann, deceased, against Lucelia Preston and Mary Matteson and others. From a judgment for defendants Preston and Matteson, plaintiffs appeal. Affirmed.

Thomas L. Graves and L. W. Welker, for appellants.

DOWLING, J.

Suit by appellants, as executors of the will of Joseph Kaufmann, deceased, to quiet the title to certain tracts of land in Noble county, Ind. All the defendants below, except Lucelia Preston and Mary Matteson, who are appellees here, made default, and judgment was rendered against them. The appellees, Preston and Matteson, filed separate answers in denial. The issues so formed were tried by the court, and a finding was made in favor of the appellees. Over a motion for a new trial, judgment was rendered in favor of the appellees, Preston and Matteson, against the appellants. The plaintiffs below appeal, and assign for error the overruling of their motion for a new trial.

The appellees move to dismiss the appeal, for the reason that the defendants below against whom judgment was rendered in favor of the appellants are not joined as appellants in the assignment of errors. The motion is not well founded. Such defendants were neither necessary nor proper parties to this appeal. They had no interest in the judgment in favor of Preston and Matteson against the appellants, and they were not affected by it. Preston and Matteson, the only appellees here, had no interest in the judgment in favor of the appellants against the defendants who made default. The rule is that all of the parties to the judgment, and affected by it, must be included in the appeal and named in the assignment of errors. Section 644, Burns' Rev. St. 1901 (section 632, Rev. St. 1881, and section 632, Horner's Rev. St. 1901). But where a defendant is not a joint judgment defendant with the appellant, such defendant need not be made a co-appellant in a vacation appeal. Zimmerman v. Gaumer, 152 Ind. 552, 554, 53 N. E. 829;Lowe v. Turpie, 147 Ind. 652, 692, 44 N. E. 25, 47 N. E. 150, 37 L. R. A. 245. Parties who make default must be made co-appellants when their co-judgment defendants appeal in vacation. Insurance Co. v. Frankel, 151 Ind. 534, 50 N. E. 304. But where judgment is rendered against some of the defendants, and in favor of others, only those in whose favor judgment is rendered are required to be joined as co-appellees upon an appeal by the plaintiff from the judgment against him. Hadley v. Hill, 73 Ind. 442.

The grounds of the motion for a new trial were that the court erred in admitting, over the objection of the appellants, a mortgage executed by Lucius Preston to Hiram Brunson, the evidence of the probate of the will of Anson Preston, deceased, and the record of a mortgage executed by Russell A. Preston to Lucius Preston; that the decision of the court was not sustained by sufficient evidence; and that it was contrary to law. The object of appellants' suit was to quiet the title to land described in the complaint against all claims of each of the appellees in or upon the same adverse to the alleged right of the appellants. The complaint charged, in general terms, that each of the appellees made claim to some interest in the lands, and that such claims were unfounded. It averred, more specifically, that Lucius Preston mortgaged to Hiram Brunson a part of the land to secure the payment of a debt of $110; that the mortgage was recorded; that the debt so secured was afterwards fully paid; but that no sufficient release or entry of satisfaction had ever been made of record. The complaint also alleged that Russell A. Preston mortgaged to Lucius Preston a portion of the land described to secure the payment of a debt of $600; that this mortgage was properly recorded; that it was released of record, but that the heirs of the said Lucius...