Koons v. Mellett

• Decision Date: 19 December 1889
• Citation: 121 Ind. 585,23 N.E. 95
• Parties: Koons v. Mellett et al.
• Court: Indiana Supreme Court

121 Ind. 585

23 N.E. 95

Koons

v.Mellett et al.¹

Supreme Court of Indiana.

Dec. 19, 1889.

Appeal from circuit court, Wayne county; D. W. Comstock, Judge.

Action by Joshua H. Mellett against Benjamin F. Koons, as administrator with the will annexed of the estate of Daniel Ulrich, deceased, and David C. Ulrich, to subject the interest of David C. Ulrich in the estate of Daniel Ulrich to the payment of plaintiff's judgment. There was judgment for plaintiff, and defendant Koons appealed.

Olds and Berkshire, JJ., dissenting.Kibbey & Kibbey, for appellant. Burcheral & Rupe, for appellee.

Coffey, J.

Daniel Ulrich died, testate, in Wayne county, Ind., on the 1st day of March, 1884, the owner in fee of real estate in that county of the value of $15,000, leaving eight children, then living, as his heirs at law. The will of the said Daniel Ulrich contains the following clause: “ Secondly. It is my will that all of my property, both real and personal, shall be sold, and the funds accruing therefrom shall be distributed as follows, to-wit: David, my son, five hundred dollars, for his work after he was twenty-one years of age; and Samuel, my son, three hundred dollars, for a like service; and Daniel Heaston, one hundred dollars, as a gift, out of natural love and affection; and the balance to be equally divided amongst all my children.” On the 23d day of May, 1884, the appellee, Joshua H. Mellett, recovered a judgment in the Henry county circuit court against the appellee David C. Ulrich, legatee under said will, for the sum of $1,174.82, and costs; and, on the 14th day of July, 1884, said Mellett filed a transcript of said judgment in the clerk's office of the Wayne circuit court, and caused the same to be duly recorded and docketed, for the purpose of acquiring a lien on the interest of the said David C. Ulrich in the lands of which the said Daniel Ulrich died seised; the said David being a resident of Wayne county, and being insolvent, except for his interest in the estate of the said Daniel, deceased,-an execution on said judgment having been returned wholly unsatisfied. After the filing of said transcript in the clerk's office of the Wayne circuit court, the appellant, Benjamin F. Koons, was duly appointed administrator of the estate of the said Daniel Ulrich, with the will annexed, and on the 1st day of March, 1885, sold the real estate of which the said Daniel died seised to Benjamin B. Beeson, for the sum of $15,482.89; which sale was duly approved by the Wayne circuit court. This action was brought by the appellee, Mellett, for the purpose of compelling the appellant, Koons, as administrator, to apply the money in his hands belonging to the said David C. Ulrich to the satisfaction of his judgment; the complaint averring the facts above set forth. At the death of the said Daniel Ulrich, he was surety for the said David C. Ulrich upon promissory notes aggregating a large sum, which said administrator has since been compelled to pay. This, with other debts due from David to his father, exceeded his legacy. The administrator sought to set off against the interest of the said David C. Ulrich in said estate the amount he had thus been compelled to pay, together with the debts due from him to the estate; but the circuit court refused to allow such set-off, and he excepted. The assignment of errors calls in question the correctness of this ruling. The record contains a special finding of the facts in the cause, together with the court's conclusions of law thereon, from which it appears that the court held that the appellee, Mellett, by filing a transcript of the judgment of the Henry circuit court in the clerk's office of the Wayne circuit court, acquired a lien on the interest of the said David C. Ulrich in the estate of the testator, which lien, upon a sale of the land, was transferred to the funds derived from such sale, against which the set-off could not be allowed. The contention of the appellant, Koons, as we understand it, is: First, that, by the terms of the will of the said Daniel Ulrich, the said David had no interest in the land, but simply an interest in the proceeds of the sale of such land, which was personal property, and that by reason thereof the appellee acquired no lien by the filing of his transcript; and, second, admitting that the appellee did acquire a lien by filing a transcript of the judgment of the Henry circuit court in the clerk's office of Wayne county, that such lien was subject to the equities in favor of the estate, and that he was entitled to no more than the balance after the payment of the indebtedness of David to the estate.

Before passing upon or considering the questions involving the merits of the controversy between the parties, it becomes necessary to inquire whether the case is in a condition to authorize this court to enter upon such consideration. The appellee has filed in this court a motion to dismiss the appeal, for the alleged reasons- First, that the appellant has failed to comply with the provision of section 635, Rev. St. 1881, upon the subject of appeals; second, for the reason that the case falls within the provisions of sections 2454 and 2455 of the Revised Statutes of 1881, and it is claimed that, as the transcript in the cause was not filed in this court within the time limited by these sections, the appeal should be dismissed. Section 635, supra, provides that “a part of several co-parties may appeal; but, in such case, they must serve notice of the appeal upon all the other co-parties, and file the proof thereof with the clerk of the supreme court.” It has been held by this court that where a part only of several co-parties appeal from a joint judgment, without notice of such appeal to their co-parties, the appeal will be dismissed. Herzogg v. Chambers, 61 Ind. 333;Bank v. Finney, 63 Ind. 460;Cranmore v. Bodine, 65 Ind. 25;Hunter v. Chrisman, 70 Ind. 439;Couch v. Thomas, 71 Ind. 286. But this rule is confined to parties against whom judgment has been rendered; and it is not necessary to serve notice upon parties to the record, and against whom the court has failed to render any judgment in the cause, and who have no interest in the result of the appeal. Wilson v. Stewart, 63 Ind. 294;Logan v. Logan, 77 Ind. 558;Easter v. Severin, 78 Ind. 540;Hogan v. Robinson, 94 Ind. 138. The decree rendered in this case is against appellant and David C. Ulrich alone. There is no finding, judgment, or decree of any kind against any of the other parties to the suit. Notice of this appeal was served by appellant upon David C. Ulrich, and he declined to join in the appeal. Notice was issued for the other parties to the suit, and service acknowledged by Kibbey & Kibbey, attorneys; but, as they are not necessary parties to this appeal, we deem it unnecessary to inquire whether such attorneys had authority to bind them by such acknowledgment of service or not, as such notice is not necessary to the validity of this appeal. Section 2454, supra, provides that any person considering himself aggrieved by any decision of a circuit court, or judge thereof in vacation, growing out of any matter connected with a decedent's estate, may prosecute an appeal to the supreme court, upon filing with the clerk of such circuit court a bond, with sufficient sureties conditioned for the diligent prosecution of such appeal, etc. Section 2455 provides that such appeal-bond shall be filed within 10 days after the decision complained of is made. Any person who is aggrieved, desiring such appeal, may take the same in his own name, without joining with any other person. The transcript shall be filed in the supreme court within 10 days after filing the bond. These statutes have been so often construed by this court that there is now no room for doubt as to their meaning. The rule to be deduced from the decision upon the subject is that in all proceedings under the law providing for the settlement of a decedent's estate, where the exercise of the probate jurisdiction of the court is invoked, the appeal is governed by sections 2454 and 2455, Rev. St. 1881; but, in all actions authorized by the Code, and not involving the exercise of the probate jurisdiction of the court, the appeal is governed by the Code, and these sections have no application. Browning v. McCracken, 97 Ind. 279;Bennett v. Bennett, 102 Ind. 86, 1 N. E. Rep. 199; Miller v. Carmichael, 98 Ind. 236;Yearley v. Sharp, 96 Ind. 469;Seward v. Clark, 67 Ind. 289;...