Mikels v. Citizens' Nat. Bank of Crawfordsville
| Decision Date | 19 December 1922 |
| Docket Number | No. 11578.,11578. |
| Citation | 79 Ind.App. 165,137 N.E. 584 |
| Parties | MIKELS et al. v. CITIZENS' NAT. BANK OF CRAWFORDSVILLE. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Montgomery County; O. B. Ratcliff, Special Judge.
Proceeding supplemental to execution by the Citizens' National Bank of Crawfordsville against Eston O. Mikels and others. Judgment for plaintiff, and defendants appeal. Affirmed.Henry D. Van Cleave and Arthur McGaughney, both of Crawfordsville, for appellants.
Harry N. Fine, W. J. Sprow, and Chase Harding, all of Crawfordsville, for appellee.
This is a proceeding supplemental to execution instituted by appellee against appellants. After issues were joined the cause was submitted to the court for trial, resulting in a judgment in favor of appellee, with a decree protecting certain rights of appellant Rosa B. Buchanan. Appellants Eston O. Mikels and William M. Buchanan filed separate motions for a new trial, each of which was overruled, and they are now prosecuting this appeal on separate assignments of errors. Appellee failed to file cross-errors within 60 days after the submission of the cause on appeal, but subsequently filed an application for leave to file such an assignment, which it tendered for filing in the event leave was granted. As it does not appear that a ruling has been made on this application, we now deny the same on the ground that the assignment tendered, with the request for leave to file, does not contain any specification of error, recognized as proper when independently assigned.
As this is a vacation appeal by only a part of the judgment defendants in the court below, notice was served as provided by section 674, Burns 1914. After the service of such notice, Rosa B. Buchanan, one of the parties against whom appellee was given a judgment, filed her refusal to join in this appeal, and asked that her name be stricken out. Action on the motion filed by her in this regard having been postponed until final hearing, the same is now sustained, and by reason of the provisions of section 674 her name is now stricken from the assignment of errors.
Appellee has a motion pending to dismiss the appeal, based on an alleged failure to comply with said section 674, regarding the service of notice on coparties in a vacation appeal, and on defects in appellants' briefs. It appears that Edgar A. Rice, clerk of the Montgomery circuit court, was made a party defendant by reason of an allegation in the complaint, charging that he held a sum of money as such clerk, paid into his hands by appellee as a junior judgment creditor of appellant Washington I. Buchanan for the redemption of certain land from a sale by the sheriff of said county to appellant William M. Buchanan, who is claiming said money; that said money does not belong to said William M. Buchanan, but is the property of said Washington I. Buchanan, and should be paid to appellee for application on its judgment. The said Edgar A. Rice filed an answer, admitting that he held said money, as clerk of the Montgomery circuit court, and alleging that he desired to pay the same to whosoever the court should adjudge is entitled thereto. He asked that he be ordered to hold the same until the conflicting claims thereto were determined, and an order made by the court for its payment. After trial the court adjudged that appellee was entitled to receive said money, and ordered the clerk to pay the same to it. It further appears that the judgment from which this appeal is prosecuted was rendered while the said Edgar A. Rice was still clerk of the Montgomery circuit court, but that his term of office had expired, and one Homer K. Schwindler had assumed the duties of such office, pursuant to election and qualification, prior to the date on which the transcript was filed on appeal; that, notwithstanding this fact, said Edgar A. Rice, clerk of the Montgomery circuit court, was named as an appellant in the assignment of errors, and notice of appeal was served on him, but no notice was served on said Homer K. Schwindler.
Because of this fact, appellee contends that the court is without jurisdiction, and has presented the same as one of the grounds on which it bases its motion to dismiss the appeal. Said section 674 provides that-
“A part of several coparties may appeal to the Supreme or Appellate Court, but in such case they must serve written notice of the appeal upon all the other coparties or their attorneys of record. ***”
It has been held that “coparties,” as used in said section, means coparties to the judgment, and not merely coparties to the record. Trippeer v. Clifton (1912) 178 Ind. 198, 97 N. E. 791, 39 L. R. A. (N. S.) 522;Souers v. Walter (1912) 178 Ind. 599, 99 N. E. 1002. It has also been held, in effect, that where there are a number of judgment defendants in an action, and one or more, but not all, prosecute a vacation appeal, that it is only necessary to join, as coappellants, those whose rights may be affected thereby. Lowe v. Turpie (1896) 147 Ind. 652, 44 N. E. 25, 47 N. E. 150, 37 L. R. A. 233;Kaufman v. Preston (1901) 158 Ind. 361, 63 N. E. 570;Hester v. Town of Greenwood (1909) 172 Ind. 279, 88 N. E. 498; Souers v. Walter, supra; Clear Creek Tp. v. Rittger (1894) 12 Ind. App. 355, 39 N. E. 1052. In the instant case, the said Edgar A. Rice was made a party defendant in his official capacity, as clerk of the Montgomery circuit court, by reason of a charge that he held certain redemption money, which appellee and appellant William M. Buchanan were each claiming. He answered the complaint in that capacity, admitting that he held the money in question, and alleging that it was so held for whosoever the court might adjudge was entitled thereto. On the trial the court ordered that the clerk pay the money to appellee, without naming the person who held such office.
No other order was made, or judgment rendered, which in any way related to said Edgar A. Rice, as an officer or otherwise.
[1] It is therefore manifest that neither said Rice nor said Schwindler, as his successor in office, had any rights which could be affected in any way by the result of this appeal. The real parties in interest, with reference to the money in question, were appellee and said William M. Buchanan, both of whom were before the trial court, where an issue was presented and determined respecting their rights thereto, and both are parties to this appeal. This being true, it is clearly apparent that said Rice and said Schwindler stand, not only indifferent between the parties, but indifferent as to whether the judgment is affirmed or reversed, as in either event they are fully protected. Basket v. Hassell, 107 U. S. 602, 2 Sup. Ct. 415, 27 L. Ed. 500. It follows that neither is a necessary party to this appeal, and any absence of notice as to either of them is not ground for dismissal. The alleged defects in the briefs of appellants are not of such a character as to require a dismissal of the appeal. Appellee's...
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Mikels v. Citizens National Bank of Crawfordsville
... ... reasonable inference, which the court may have drawn from the ... facts proven, which tends to sustain the court's ... decision, although such facts may be susceptible of other ... inferences equally as reasonable. Klotz v. First ... Nat. Bank (1922), 78 Ind.App. 679, 134 N.E. 220. When ... this is done, we are forced to conclude that there is some ... evidence to sustain every essential fact of the decision in ... question. This is sufficient on appeal, where the evidence ... [79 Ind.App. 173] is not documentary, although in ... ...