Masters v. Abbitt

• Decision Date: 21 November 1912
• Docket Number: 8,405
• Citation: 99 N.E. 815,51 Ind.App. 429
• Parties: MASTERS, RECEIVER, v. ABBITT ET AL
• Court: Indiana Appellate Court

99 N.E. 815

51 Ind.App. 429

MASTERS, RECEIVER, v. ABBITT ET AL

No. 8,405

Court of Appeals of Indiana

November 21, 1912

From Hendricks Circuit Court; James L. Clark, Judge.

Action by J. Fred Masters, as receiver of the Indiana-Ohio-Illinois Railway Company, against George Abbitt and others. From a judgment for defendants, the plaintiff appeals.

Appeal dismissed.

Collie E. Kinnie, Otis E. Gulley and J. Fred Masters, for appellant.

James D. Ermston, Edward B. Raub, Frank J. Lahr, L. A. Barnett Wiley & Jones and Boyd & Julien, for appellees.

OPINION

ADAMS, P. J.

Action by appellant, as receiver of the Indiana-Ohio-Illinois Railway Company, against appellees, about two hundred in number, to recover on stock subscriptions made by each of said appellees to said railway. The court sustained a demurrer to the second amended complaint, and, appellant refusing to plead further and electing to abide by his complaint and exception to the ruling of the court in sustaining the demurrer thereto, final judgment was rendered against appellant that he take nothing by his complaint, and that appellees recover their costs.

This appeal is prosecuted as a vacation appeal, the transcript and assignment of errors being filed with the clerk of this court on June 29, 1912, the last day of the year allowed for taking a vacation appeal. Service of notice of the appeal on the attorneys of record is relied on to bring all appellees into this court.

A motion to dismiss the appeal has been filed by a part of the appellees, on the ground that no effort has been made by appellant, within the year given for perfecting the appeal to bring appellees into court by notice. In support of the motion to dismiss, the affidavit of Walter R. Fertig, one of the attorneys for certain appellees, is filed, showing that five of the defendants to the action in the lower court have died since the rendition of the judgment below, and that neither the heirs nor the representatives of such deceased parties have been substituted as parties to this appeal, nor any steps taken by appellant to perfect the appeal as to them, although appellant was notified of the death of said parties before filing the transcript in this court.

The affidavit further shows that ten defendants in the action below have not been served with notice of the appeal; that while it is shown by the record that said parties appeared in the trial court and joined with others in the demurrer to the complaint, such appearance was pro forma only, and was entered by counsel representing other appellees at the request of counsel for appellant, for the purpose of disposing of said cause as to all parties in the court below that appellant and his counsel knew and were advised at the time that the attorneys so appearing were not in fact employed by said parties, and when appellant sought to serve notice of the appeal on counsel for appellees, the latter declined to accept service, and again informed appellant's counsel that they were not authorized to appear for said parties or to accept service of notice for them.

Counter-affidavits have been filed by appellant and by Collie E. Kinnie and Otis E. Gulley, his only attorneys of record, wherein it is averred that neither appellant nor his attorneys had any notice or knowledge at the time the transcript was filed and the appeal taken that said appellees were dead; that none of them had any notice or knowledge that the appearance entered for said appellees was not a full, bona fide appearance.

Proof of service on the parties in question is made by the affidavit of James E. Bobcock, wherein it is shown that on June 20, 1912, affiant "for and on behalf of appellant" served notice of the appeal on W. R. Fertig, of the firm of Shirts & Fertig, attorneys of record for the ten defendants and the deceased defendants in the court below, by reading said notice in his presence and leaving a true copy thereof with him.

Assuming that the affidavits of appellant and his counsel state the facts correctly, still it is not shown that Babcock, who served the notice, was not fully advised of the facts set out in the...