Michigan Mutual Life Insurance Company v. Frankel

• Decision Date: 28 April 1898
• Docket Number: 18,174
• Citation: 50 N.E. 304,151 Ind. 534
• Parties: Michigan Mutual Life Insurance Company v. Frankel
• Court: Indiana Supreme Court

50 N.E. 304

151 Ind. 534

Michigan Mutual Life Insurance Company v. Frankel

No. 18,174

Supreme Court of Indiana

April 28, 1898

Rehearing Denied Nov. 29, 1898.

From the Hamilton Circuit Court.

Appeal dismissed.

Holtzman & Leathers, for appellant.

M. E Clodfelter and Fertig & Alexander, for appellee.

OPINION

Jordan, J.

This action was commenced by the appellee, against her husband, Jacob Frankel, and the Michigan Mutual Life Insurance Company, in the superior court of Marion county. The purpose of the suit was to set aside a deed executed by the plaintifi and her said husband to his codefendant, whereby they purported to convey to the latter certain described real estate in the city of Indianapolis, owned by the plaintiff, and to quiet her title against both of the defendants to the real estate in controversy. The complaint is in four paragraphs. The first alleges possession and ownership of the realty in the plaintiff, and avers that the defendants assert an adverse claim or title to the same, and the prayer is that the plaintiff's title be quieted. The others allege that the execution of the deed in dispute was procured by the fraud and deceit of the defendants, and the relief sought is to set aside the conveyance and to quiet title to the land. The defendant, Jacob Frankel, made default to the complaint in the superior court, and subsequently, on motion, the cause was venued to the Hamilton Circuit Court, wherein the issues were joined upon the several pleadings filed; and a trial resulted in a special finding in favor of the plaintiff, and recovery by her of a judgment against the defendants setting aside the deed of conveyance, and quieting her title as against both defendants, and adjudging a lien in favor of appellant on the real estate, as against the appellee and her said husband, on account of street improvements and other liens against the real estate paid by the appellant; and a foreclosure of the said lien was ordered by the court, as a part of its judgment. From this judgment, appellant alone appeals, without notifying Jacob Frankel and making him a co-appellant, as required by section 647, Burns' R. S. 1894 (635, R. S. 1881), and for this failure upon the part of the appellant, appellee moves to dismiss the appeal. Counsel for appellant contend that this motion should not be sustained for the following reasons: First, that the appeal is a term-time appeal, and therefore, under the provisions of the act of 1895 (Acts 1895, p. 179), it was not necessary to notify or make Jacob Frankel a co-appellant; second, that it does not appear that said Frankel had any interest in the real estate in common with the appellant, and that the judgment quieting appellee's title against him is merely surplusage, and consequently he has no appealable interest, and cannot be affected by any judgment that may be rendered in this appeal by this court; third, that the motion of appellee to dismiss was not seasonably filed, and therefore she has waived her right to demand that the appeal be dismissed.

An examination of the record reveals that on July 13, 1896, the same being the last judicial day of the April term of the Hamilton Circuit Court, that court made its special finding in the cause, and rendered the judgment thereon in favor of the plaintiff against the defendants, as heretofore stated. On the first day of the next term of that court, the same being September 7, 1896, appellant filed its motion for a new trial, which the court on that day overruled; and appellant then applied for a new trial under the statute as a matter of right. On the 29th day of September, 1896, which was the twentieth judicial day of the September term, this application was denied, and sixty days were granted to file a bill of exceptions; and the record discloses the following entry: "And the defendant prays an appeal to the Supreme Court, which is granted, and the bond fixed at $ 300.00, to be filed herein, properly conditioned with the American Surety Company as surety, and said bond is to be approved upon such condition." The record does not show that any appeal bond was filed in term, or that any time was fixed by the court for the filing thereof. The transcript was not filed in this court until February 6, 1897, more than four months after the application for a new trial as a matter of right was denied, and the penalty and surety fixed and approved, by the court. It is evident, under these circumstances, that this is not a term-time appeal. Section 650, Burns' R. S. 1894 (638, R. S. 1881), which pertains to appeals during term, provides: "When an appeal is taken during the term at which judgment is rendered, it shall operate as a stay of all further proceedings on the judgment, upon an appeal bond being filed by the appellant, with such penalty and surety as the court shall approve, and within such time as it shall direct. * * * The transcript shall be filed in the office of the clerk of the Supreme Court within sixty days after filing the bond."

The statute provides the steps which must be taken in order to effect a term-time appeal, and thereby relieve the appellant from giving the notice required by law in vacation appeals. The penalty...