Moore v. Slack

• Decision Date: 18 December 1894
• Docket Number: 17,164
• Parties: Moore v. Slack et al
• Court: Indiana Supreme Court

39 N.E. 237

140 Ind. 38

Moore v. Slack et al

No. 17,164

Supreme Court of Indiana

December 18, 1894

Motion to Reinstate Overruled Jan. 18, 1895.

From the Huntington Circuit Court.

C. W Watkins, J. F. France, Z. T. Dungan, for appellant.

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

OPINION

McCabe, J.

The appellant brought suit against the appellees to enjoin them from casting foul water and the contents of privy vaults and waste water into a certain tile drain which, it is claimed, appellees maintained, which carried the alleged noisome substances so close to appellant's land, that is, on to the adjoining lot of appellee, Maria O. Murry, that the same flowed on to and over appellant's lot which she used for a pasture creating a nuisance in the neighborhood and greatly injuring appellant's lot. Issues were formed on the complaint, a trial of which resulted in a special finding of the facts by the court upon which it stated conclusions of law in favor of appellant upon which she had judgment enjoining the appellees and other relief.

The court, on motion, modified the decree somewhat, to which appellant objected and excepted. The only error assigned calls in question the ruling of the court in modifying the decree. The judgment was rendered on the 5th day of June, 1893. The motion to modify was filed during that term, and at the September term, on October 3, 1893, the judgment was modified. And from that order this appeal is attempted to be prosecuted. The record was filed in this court on December 4, 1893. On that day notice of appeal was duly issued by the clerk of this court in the name of said appellant, Belinda A. Moore, which was duly returned on December 7, 1893, served on appellees.

On December 4, 1893, a paper entitled Belinda A. Moore, appellant, v. James R. Slack et al., was filed in this court, purporting to be a motion on the part of Emma R. Taylor, Alice Moore, Alford Moore and Dessie Moore, stating that said appellant Belinda A. had died, that she had left surviving as her sole heirs at law said persons who are all alleged to be over twenty-one years of age, and they ask that their names be substituted as appellants, and "that they be permitted to prosecute this action in their own names." We presume they mean to ask leave to prosecute the appeal in their own names.

In a notice on the appellees of such motion to substitute they state that said Belinda A. Moore died before the appeal was taken. Service of this notice is acknowledged by the attorneys for the appellees, and in such acknowledgment say they agree that the substitution may be made.

The right to substitute depends on the question whether any appeal is pending at all.

The statute provides that, "In case of the death of any or all the parties to a judgment before an appeal is taken, an appeal may be taken by, and notice of an appeal served upon, the persons in whose favor and against whom the action might have been revived, if death had occurred before judgment." Burns R. S. 1894, section 648; R. S. 1881, section 636.

Under this statute it has been held by this court that an appeal taken to the Supreme Court in the name of a dead appellant is a nullity. Taylor v. Elliott, 52 Ind. 588; Taylor v. Elliott, 53 Ind. 441; Branham v. Johnson, 62 Ind. 259.

In the second case of Taylor v. Elliott supra, this court said, on page 442, that: "If the court acquired no jurisdiction of Taylor, neither did it, under the circumstances of this case, of the appeal. And if the judgment rendered by the court on the appeal was void, it was so because the appeal was void, conferring no jurisdiction upon the court over the cause. The decision amounts to this: That no genuine appeal was ever taken; that an appeal in the name of a dead man, and apparently by him, in the absence of statutory...