McConahey's Estate v. Foster

• Decision Date: 12 January 1899
• Docket Number: 2,609
• Citation: 52 N.E. 619,21 Ind.App. 416
• Parties: MCCONAHEY'S ESTATE v. FOSTER
• Court: Indiana Appellate Court

52 N.E. 619

21 Ind.App. 416

MCCONAHEY'S ESTATE v. FOSTER

No. 2,609

Court of Appeals of Indiana

January 12, 1899

From the Whitley Circuit Court.

Affirmed.

Marshall McNagny & Clugston and John Q. Cline, for appellant.

J. B Kenner and U. S. Lesh, for appellee.

OPINION

BLACK, C. J.

It appears from the record before us that on the 16th day of December, 1893, judgment of allowance of a claim was rendered in the Huntington Circuit Court in favor of Emma A. Foster against Emma A. Foster, administratrix of the estate of Mary McConahey, deceased, the claim being upon a note purporting to be made by Mary McConahey payable to Emma A. Foster; an attorney having been appointed by the court to defend on behalf of the estate. On the 11th of April, 1894, there was filed in said court a complaint which is not in the transcript, an amended complaint having been filed after the venue had been changed to the court below. The amended complaint was entitled "Estate of Mary McConahey v. Emma A. Foster," the entry of record relating to the amendment being entitled "Emma A. Foster, Adm. of the Estate of Mary McConahey, deceased, v. Emma A. Foster." It was a complaint for a new trial for cause discovered after the term at which the verdict was rendered. An issue having been formed by answer in denial, the cause was tried by the court. It appears from an entry of record entitled "Emma A. Foster, Adm. of the Estate of Mary McConahey, deceased, v. Emma A. Foster," that the court found for the defendant and against the plaintiff upon the issue joined. The entry then proceeds: "It is therefore ordered, decreed, and adjudged by the court that the plaintiff take nothing by her suit, and that defendant recover her costs", etc. There was a motion entitled "Emma A. Foster, Adm. of the Estate of Mary McConahey, deceased, v. Emma A. Foster," in which the "plaintiff, Emma A. Foster, Adm. of the estate of Mary McConahey, deceased," moved for "a new trial and a new hearing" for the following reasons: "(1) The finding and judgment of the court is not supported by sufficient evidence; (2) the finding and judgment of the court is contrary to law; (3) the finding and judgment of the court is contrary to the evidence." The only alleged error assigned by the appellant is the overruling of the appellant's motion for a new trial, the assignment being entitled "The Estate of Mary McConahey, deceased, Appellant, v. Emma A. Foster, Appellee. " The appellee has moved to dismiss the appeal, for the reason that Emma A. Foster, administratrix of the estate of the decedent is not, but should have been, made a party to the appeal.

Rule three of the rules of this court requires the appellant to properly entitle the cause in the assignment of errors, and rule six provides that the assignment of errors shall contain the full names of the parties. The assignment in this case is plainly defective. See Estate of Peden v Noland, 45 Ind. 354; Estate of Thomas v. Service, 90 Ind. 128. The reports of the Supreme Court and of this Court contain cases in which the appellant or the appellee has been designated as the estate of a decedent named, and in which such defect has been ignored or expressly treated as waived. In Estate of Wells v. Wells, 71 Ind. 509, the court said: "The estate of a dead man cannot be a party to a suit without some representative; and the suit should be carried on in the name of the representative as such. It would have been more formal, if the plaintiff had filed his claim in his individual capacity against himself in his representative capacity. No objection, however, is made in this respect." The court, having thus adverted to the defect in the title of the cause, proceeded to reverse the judgment of the trial court. See, also, Goodbub v. Estate of Hornung, 127 Ind. 181, 26 N.E. 770; Estate of Reeves v. Moore, 4 Ind.App. 492, 31 N.E. 44; Estate of Henzler v. Bossard, 6 Ind.App. 701, 33 N.E. 217; Crumrine v. Estate of Crumrine, 14 Ind.App. 641, 43 N.E. 322. Here it appears from the record, and, indeed, also in the motion to...