Lowe v. Turpie

• Decision Date: 19 May 1897
• Parties: LOWE v. TURPIE et al.
• Court: Indiana Supreme Court

147 Ind. 652
47 N.E. 150

LOWE
v.
TURPIE et al.

Supreme Court of Indiana.

May 19, 1897.

On petition for rehearing. Denied.

For prior report, see 44 N. E. 25.

Edwin P. Hammond, Charles B. Stuart, William V. Stuart, S. P. Thompson, and R. P. Davidson, for appellant. Walker & McClintic, J. H. Gould, and Elliott & Elliott, for appellees.

PER CURIAM.

It is urged in the petition for a rehearing that this court had no jurisdiction of this appeal for the reason that appellant did not make his co-defendants in the court below co-appellants in this court, as required by section 647, Rev. St. 1894 (section 635, Rev. St. 1881). Before the taking effect of the act of 1895 (Acts 1895, p. 179), this court held that all co-parties to the judgment in the court below must be made co-appellants in this court in all appeals governed by the Code of Civil Procedure, or the same would be dismissed for want of jurisdiction. Gregory v. Smith, 139 Ind. 48, 38 N. E. 395;Wood v. Clites, 140 Ind. 472, 39 N. E. 160, and cases cited. Under the provisions of said act of 1895, when one or more co-parties appeal from a judgment taken against them to this or the appellate court under section 650, Rev. St. 1894 (section 638, Rev. St. 1881), known as a “term-time appeal,” it is not necessary to make the co-parties to the judgment not appealing parties to the appeal, nor is it necessary to name them in the assignment of errors as appellants or appellees. Section 2 of said act provides that it shall not apply to vacation appeals, and that it shall apply to all appeals that were on file in the supreme or appellate courts on March 9, 1895, as well as to

[47 N.E. 151]

all appeals taken after said date. Since said act of 1895 took effect, it is only in vacation appeals that those who appeal must make all co-parties to the judgment co-appellants in this court, or the appeal will be dismissed for want of jurisdiction. Denke-Walter v. Loeper, 142 Ind. 657, 42 N. E. 358, and cases cited; Shuman v. Collis, 144 Ind. 333, 43 N. E. 257. The appeal in this case, however, was a termtime appeal, as stated in the original opinion, and was pending in this court on March 9, 1895, when said act of 1895 took effect, and was, therefore, governed by its provisions; and it was not necessary, therefore, for appellant to make his co-defendants in the court below, even if they were joint judgment defendants with him, co-appellants in this court. But if this was a vacation, and not a termtime, appeal, was appellant required to...