Makeever v. Makeever

• Decision Date: 16 November 1917
• Docket Number: No. 9937.,9937.
• Citation: 65 Ind.App. 677,117 N.E. 691
• Parties: MAKEEVER v. MAKEEVER et al.
• Court: Indiana Appellate Court

65 Ind.App. 677

117 N.E. 691

MAKEEVER

v.MAKEEVER et al.

No. 9937.

Appellate Court of Indiana, Division No. 1.

Nov. 16, 1917.

Appeal from Circuit Court, Newton County; Chas. W. Hanley, Judge.

Action by Francis M. Makeever against Jay Makeever and others. From an adverse judgment, plaintiff appeals. Appeal dismissed.E. B. Sellers, of Monticello, and John A. Dunlap, of Rensselaer, for appellant. Geo. A. Williams and W. H. Parkinson, both of Rensselaer, for appellees.

HOTTEL, C. J.

This is an appeal from a judgment in favor of appellees in an action brought by appellant in which he, in one paragraph of his complaint, sought to quiet title to certain real estate therein described, and in a second and third paragraph he sought to have a trust declared in his favor in the same real estate.

The assignment of error in this court is prefaced with the following statement:

“The above-named appellant says that Jasper Makeever departed this life about March 15, 1917, and that Jay Makeever, Charles Makeever, Nellie Makeever, Bride Phillips, Alberta Candice Collins, and Jane Makeever are his sole and only heirs at law, and that no administrator or executor has been appointed to administer upon his estate.”

Jasper Makeever was a defendant below. His name does not appear in the assignment of error in this court, but there does appear therein as appellees the names of those persons indicated in the preface of such assignment as the heirs of said deceased.

The appellees, “other than the heirs of Jasper Makeever, deceased, and Virginia Estella Seward,” have filed a motion to dismiss the appeal. The first ground of said motion is as follows:

“(1) That no notice of the appeal in said cause has been served upon Jay Makeever.”

The second, third, fourth, fifth, and sixth grounds of said motion are the same as the first, except as to the name of the party not served, the name appearing in said grounds respectively being Charles Makeever, Nellie Makeever, Bride Phillips, Alberta Candice Collins, and Jane Makeever. The seventh ground of the motion is as follows:

“That Jasper Makeever the defendant in the court below died testate on the 15th day of March, 1917, and by his will appointed his widow Jane Makeever executrix of his estate.”

The eighth and ninth grounds are, in substance, covered by the tenth ground, which is to the following effect, viz.:

That the assignment of error herein is defective, in that Jasper Makeever, the defendant in the court below, “was dead, and his widow, Jane Makeever, was appointed executrix of his estate after the judgment was rendered in the court below and before the transcript and assignment of errors *** were filed in this court, and said Jane Makeever, as said executrix of said estate, was not made a party to the assignment of errors.”

Causes 13, 14, and 15 are respectively predicated upon the fact that neither Jay Makeever, Charles Makeever, nor Nellie Makeever was a defendant below, and that no notice of appeal has been served upon either of them. Said motion contains other grounds, but those indicated are sufficient for the purposes of its disposition.

Since the filing of said motion the appellant, by one of his attorneys, has filed his sworn application to make new parties, which, omitting caption, is in substance as follows:

The appellant moves the court for permission to make new parties to this appeal, and shows that the judgment herein was rendered on January 9, 1917; that the transcript was filed on April 7th; that Jasper Makeever, one of the defendants below, died on March 15, 1917, at his home in Newton county, Ind., that this affiant is now, and was then, a resident of Jasper county, Ind.; that at the time of filing the transcript herein affiant believed that the said Jasper Makeever died intestate, and he therefore named his legal heirs as parties to this appeal; that he then had no knowledge that said deceased died testate and that an executrix had qualified to administer upon his estate; that the decedent left as his widow one Jane Makeever; that she was named in decedent's will as the executrix thereof, and has since qualified as such; that said Jane Makeever is named in the appellant's assignment of errors as one of the heirs of said deceased; that the children of said deceased are also named, but that the said Jane Makeever, as executrix, was not a party, for the reason that appellant did not know at the time of filing the transcript in this cause that the said Jasper Makeever had died testate and that the said Jane Makeever had been appointed and qualified as executrix. “Wherefore appellant prays that he be granted permission to make the said Jane Makeever, executrix of the last will and testament of Jasper Makeever, deceased, a party to this appeal, and that appellant be granted permission to give notice to the parties of the appeal.”

This application is answered by a counter affidavit of W. H. Parkinson, an attorney for appellees other than Virginia Estella Seward and the heirs of said deceased Jasper Makeever, which, among other things, alleges in substance:

That Jane Makeever was on the 21st day of March, 1917, appointed executrix of said estate; that she qualified on that day and gave notice by publication in a newspaper of general circulationpublished in Newton county, Ind., at or near said date, notifying the public that she was the duly qualified and acting executrix of the said estate of said Jasper Makeever, deceased; that appellant was then, and for many years prior thereto and continuously ever since has been, a resident of said county of Newton; that appellant was a brother of deceased, and lived within one-half mile of his home; that long before and at the time of the filing of the transcript and assignment of errors in this cause on the 7th day of April, 1917, appellant knew, or could with reasonable diligence have known, of the death of Jasper Makeever, and that he died testate and left a will; that affiant verily believes that the said appellant did know prior to said 7th day of April, 1917, that said deceased had left a will naming his widow Jane Makeever, as executrix of his said estate, and that said will had been probated, and that said Jane Makeever was on the 7th day of April, 1917, the duly appointed, qualified, and acting executrix of said estate, or was chargeable with knowledge of facts which would have led him to inquire, and upon the slightest inquiry might have known such facts; that the attorney for appellant knew, or could have known by the slightest inquiry, that no notice had ever been served upon the heirs of said deceased notifying them of said appeal; that neither the appellant nor his attorney ever notified the heirs of Jasper Makeever of said appeal or requested the clerk of the Supreme and Appellate Courts to notify the said heirs as by law required.

The record, so far as pertinent to the question presented, shows the following facts: On March 14, 1916, at the March term of said court, the trial court filed its special finding of facts and conclusions of law in favor of appellees. At the same term, and on April 7, 1916, a motion for new trial was filed and overruled, an appeal prayed by appellant, appeal granted, bond with penalty of $200 ordered filed, but no security was named or approved. On May 6th, in vacation, a bond in the sum of $500, with National Surety Company as surety, was filed. A vacation entry of July 24, 1916, shows the filing of the longhand manuscript of the evidence. A record entry of January 9, 1917, being the second day of the January term, 1917, of said court, shows that appellant appeared and filed a written motion in said cause in which he set out the fact that the court had at the time above indicated filed its special finding of facts and conclusions of law in said cause, that appellant filed a motion for a new trial which had been overruled, etc., but that no judgment had been rendered in said cause; that appellant perfected his appeal to the Appellate Court, and discovered that no judgment had been...