Masters v. Abbitt

• Decision Date: 21 November 1912
• Docket Number: No. 8,405.,8,405.
• Citation: 99 N.E. 815,51 Ind.App. 429
• Parties: MASTERS v. ABBITT et al.
• Court: Indiana Appellate Court

51 Ind.App. 429

99 N.E. 815

MASTERS

v.ABBITT et al.

No. 8,405.

Appellate Court of Indiana, Division No. 2.

Nov. 21, 1912.

Appeal from Circuit Court, Hamilton County; Charles L. Clark, Judge.

Action by J. Fred Masters, receiver, against George Abbitt and others. From a judgment for defendants, plaintiff appeals. Dismissed.

Collie E. Kinney, of Indianapolis, Otis E. Gulley, of Danville, and J. Fred Masters, of Indianapolis, for appellant. L. D. Boyd, of Delphi, for appellees.

ADAMS, P. J.

Action by the appellant as receiver of the Indiana-Ohio-Illinois Railway Company against appellees, about 200 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 upon to bring all appellees into this court. A motion to dismiss the appeal has been filed by a part of the appellees, upon the ground that no effort has been made by appellant within the year given for perfecting the appeal to bring the 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 10 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 council 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 accept service of notice for them. Counter affidavits have been filed by the appellant and Collie E. Kinney and Otis E. Gulley, his only attorneys of record, wherein it is averred that neither the appellant nor his attorneys had any notice or knowledge that said appellees at the time the transcript was filed and the appeal taken were dead; that none of them had any notice or knowledge that the appearance entered for said defendants was not a full, bona fide appearance. Proof of service on the parties in question is made by the affidavit of James E. Babcock, wherein it is shown that on June 20, 1912, affiant “for and on behalf of appellant” served notice of the appeal on W. R....