New American Oil & Mining Co. v. Troyer

• Decision Date: 26 April 1906
• Docket Number: No. 20,743.,20,743.
• Citation: 166 Ind. 402,77 N.E. 739
• Parties: NEW AMERICAN OIL & MINING CO. et al. v. TROYER et al.
• Court: Indiana Supreme Court

166 Ind. 402

77 N.E. 739

NEW AMERICAN OIL & MINING CO. et al.

v.TROYER et al.

No. 20,743.

Supreme Court of Indiana.

April 26, 1906.

On petition for rehearing. Petition overruled.

For former opinion, see 76 N. E. 253. See, also, 74 N. E. 37.

HADLEY, J.

Appellees complain because we did not consider their motion to dismiss the appeal, grounded on the want of proper parties and the want of notice. There can be no doubt of the rule, as contended for, that all joint judgment defendants must be joined as co-appellants in an appeal taken by one, or more of them, in vacation, but we are not satisfied that this appeal belongs to that class. The record shows that the New American Oil & Mining Company, the Crown Oil Company and Thomas McDonald were made parties defendant to the complaint. Both companies appeared, and each filed an answer in general denial. Thomas McDonald appeared and filed a disclaimer in effect that he had no interest, claim, or possession in the real estate described in the complaint, or any part thereof. The action is to quiet title against all adverse claims of the defendants, and McDonald's disclaimer signified that at the time of filing he had no interest, claim, or possession, in and to the lands described in the complaint. Such a pleading of itself operates as an estoppel, and between the parties and their privies, is an absolute bar to any further assertion of the right renounced. So the bill, or complaint, should, under our statute, section 1084, Burns' Ann. St. 1901, have been dismissed at the cost of the plaintiff. 6 Enc. of Pl. & Pr. 725, and authorities collated in note. Such a pleading is in no sense an answer. “It forms no issue to be tried, but simply puts the defendant out of court without further proceedings, leaving the plaintiff to pay the cost.” Work's Practice, § 555. The judgment subsequently rendered by the court, as shown by the record, quieting the title of the plaintiffs, was against “all of said defendants herein,” and for costs against the Crown Oil Company. It is not stated that judgment was rendered against McDonald as one of the defendants. After he filed his disclaimer the court had no right to render judgment against him. Having at the very threshold formally informed the court that he had no interest in the subject-matter of the suit, a judgment against him thereafter, even for cost (under section 1084, supra) would have amounted to nothing more than would a judgment against one who was not named as a party. McDonald was out of the case from the moment he filed his disclaimer, and assuming that the court proceeded as the statute directs in such cases, we will presume, nothing appearing to the contrary, that the court then discharged him at the plaintiff's cost. The two remaining defendants, by name, took a new trial as of right, without mentioning the name of McDonald, but since the record discloses no additional complaint, or amended complaint, affecting McDonald, what took place in the second trial is immaterial, since we think it sufficiently appears that McDonald was not a party in the case at any time after he filed his disclaimer. Motion to dismiss overruled. The appeal should be overruled.

Appellants' counsel very skillfully and ably argue that this case is not ruled by that class of cases to which Consumers' Gas Trust Co. v. Littler, 162 Ind. 320, 70 N. E. 363, belongs, because the contract in this case contains a provision not contained in any of the former cases, to wit: “Second part [oil company] may, at any time, reconvey this grant, and thereupon this instrument shall be null and void.” It is contended that the provision quoted renders the contract voidable at the pleasure of the company, and that under the rule declared in Knight v. Indiana, etc., Co., 47 Ind. 105, 111, 17 Am. Rep. 692, which was in force and effect when the contract was made, if voidable at the will of one party to the contract, it is equally voidable at the will of the other. The unsoundness of the argument is found in the fact that the Knight Case rests upon a principle altogether different from that upon which the Littler Case is grounded. The contract in the Knight Case related to the mining of coal; to the conveyance of an interest in real estate. In that case the court says: “The owner in fee...