Nordyke & Marmon Co. v. Fitzpatrick

• Decision Date: 18 May 1904
• Citation: 71 N.E. 46,162 Ind. 663
• Court: Indiana Supreme Court
• Parties: NORDYKE & MARMON CO. v. FITZPATRICK et al.

162 Ind. 663

71 N.E. 46

NORDYKE & MARMON CO.

v.FITZPATRICK et al.

Supreme Court of Indiana.

May 18, 1904.

Appeal from Circuit Court, Greene County; O. B. Harris, Judge.

Action by Homer Lowder and others against the Nordyke & Marmon Company and others. Judgment for plaintiffs. Defendant company appeals. Transferred from the Appellate Court under section 1337u, Burns' Ann. St. 1901. Dismissed.

Slinkard & Slinkard, for appellant. C. E. Davis, for appellees.

JORDAN, J.

Appellees Homer, Mary, and Lillie Lowder successfully prosecuted this action to recover a money judgment, and to foreclose a vendor's lien upon certain described real estate. This is a vacation appeal, and the final judgment was rendered on February 13, 1902, and the transcript, together with what purports to be the original assignment of errors, was filed in the office of the clerk of this court on February 13, 1903. The assignment of errors filed on said date was entitled, “The Nordyke & Marmon Company, Appellant, v. Augustine L. Fitzpatrick et al.” On February 24, 1903, appellant filed what it denominated an amended assignment of errors, by which, in addition to Augustine L. Fitzpatrick, the sole appellee mentioned in the original assignment, Ralda Fitzpatrick, Dean Rush, Amanda Rush, and Homer, Mary, and Lillie Lowder, were made appellees. On March 31, 1903, another amended assignment of errors was filed, making Cleophas, Joseph, James, Lovia, and Guy Fitzpatrick and Grace Smith additional appellees. It is stated in this assignment of errors that after the rendition of the judgment below, but before this appeal was taken, Augustine L. Fitzpatrick died, and that these new or additional appellees are his children. On May 8, 1903, appellees Homer, Mary, and Lillie Lowder filed a motion to dismiss this appeal for certain reasons therein stated, among which were (1) that the appeal was not taken and completed until after the expiration of one year from the date of the final judgment; (2) that no notice of the appeal was issued and given to any co-parties until February 24, 1903; (3) that the names of the appellees to this appeal were not set out in the assignment of errors filed on February 13, 1903; (4) that the amended assignment of errors of February 24, 1903, was filed without any notice to appellees or their attorneys, and that no consent was given by them or their attorneys, for the filing of said assignment; (5) that appellant has failed to make its codefendants below co-appellants in this appeal, and to serve them with notice thereof, but, instead, has made them appellees herein; (6) because, at the time the original assignment of errors was filed in this court, Augustine L. Fitzpatrick, who is named therein as appellee, was dead, he having died after the rendition of the judgment, but before the appeal was taken. The grounds upon which appellees base their motion to dismiss are fully supported by the record and verified by affidavits.

Counsel for appellant, in their brief filed in opposition to the motion to dismiss, admit that they made a mistake in the original assignment of errors, but argue, in effect, that the omission to file a proper assignment in the first instance must be considered as cured by the amended assignment of errors thereafter filed. That the motion to dismiss this appeal must be sustained is beyond...