Lee v. Mozingo
| Citation | 41 N.E. 454,143 Ind. 667 |
| Decision Date | 10 October 1895 |
| Docket Number | 17.225 |
| Parties | Lee v. Mozingo et al |
| Court | Supreme Court of Indiana |
Petition to Reinstate Overruled January 31, 1896.
From the Hamilton Circuit Court.
The appeal is dismissed.
T. M Butler, for appellant.
J. F Neal, Fertig & Alexander, for appellee.
The appellee Elizabeth Mozingo sued the appellant Stephen Lee, and appellees, William R. Fox, Eliza Fox, his wife, Isaiah Lee and Margaret Lee, to have a deed executed by said Fox and wife, purporting to convey certain lands in Hamilton county to said Mozingo, declared a mortgage and to foreclose the same. It appears from the complaint, that the land belonged to Fox and that he and his wife had mortgaged it to one Joseph Billhymer to secure a note of $ 500 and coupon or interest notes thereon, all of which had been assigned to said Isaiah Lee, who had foreclosed the same and bought in the land on his foreclosure decree; that said Stephen Lee had a junior mortgage on the same land executed by the same mortgagors; that the said Isaiah Lee was the son of Stephen Lee, and was the nominal holder and owner only of the first mentioned notes and mortgage, his father, Stephen Lee, having furnished the money to buy it with. Just before the expiration of the year for redemption, Fox borrowed the money of Mozingo to redeem from Isaiah Lee's sale and did redeem therefrom with said money. Said Fox represented to Mozingo that there was no other lien on said real estate than said foreclosure decree and sale. To secure the money thus borrowed, Fox and wife executed the deed before mentioned to Mozingo. She made defendants to her complaint, William R. Fox, Eliza E. Fox, Stephen Lee, Isaiah Lee and Margaret Lee.
The complaint, in addition to seeking to have the deed declared a mortgage and a foreclosure of the same as a mortgage, also sought to subrogate Mozingo to the rights of Isaiah Lee in the decree of foreclosure and have the satisfaction thereof set aside, because it was, as alleged, the intention of said William R. Fox and Mozingo at the time she loaned the money as aforesaid that the lien of said decree should be continued and kept alive in her favor.
All the defendants in the complaint above named, except Stephen Lee, were defaulted. He answered, leading to issues of fact, the trial of which resulted in a special finding of facts on which conclusions of law were stated by the court. Pursuant to such conclusions the court rendered a judgment and decree in accordance with the prayer of the complaint and foreclosing the equity of redemption of all the defendants in and to said real estate. Stephen Lee, one of the defendants below alone appeals and makes the plaintiff and all his co-defendants in the circuit court appellees and none of them co-appellants.
The appellee Mozingo filed a motion to dismiss the appeal on January 8, 1895, for failure to make all the co-parties to the judgment below co-appellants to this appeal.
The transcript and assignment of errors were filed on February 12, 1894, and the cause was submitted on April 18, 1894. On January 14, 1895, appellant filed a motion asking leave of this court to so amend his assignment of errors as to make all co-parties to the judgment below co-appellants in this court. That motion was overruled by this court on February 21, 1895, because no excuse was stated in the application why the proper assignment had not been made before the submission, except that "Said appellant says that he is now and was at the time said assignment of errors was filed, in doubt as to whether any other persons should be made parties to this appeal, except himself and Mozingo, and also whether Mozingo should be sole appellee, and the rest of said persons be joined as appellants." Rule three of this court provides among other things as follows: "Nor shall leave be granted unless it appear that due care and diligence were exercised in the first instance to make the assignment complete." Under this rule it is not a sufficient excuse for making a defective or insufficient assignment of errors that the party was in doubt about how it ought to be made.
On January 28, 1895, the appellant filed in this court a paper duly sworn to by Isaiah Lee and Margaret Lee, parties to the judgment below, who thereby entered their appearance as co-appellants in this...
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