Nye v. Kamm

• Citation: 139 Ind.App. 687,214 N.E.2d 802
• Decision Date: 11 March 1966
• Docket Number: No. 20345,20345
• Court: Court of Appeals of Indiana
• Parties: Harriet Kamm NYE, Lois Kamm, Natalie Kamm Wolf, William Kamm, and Valarie Kamm, Appellants, v. Albin J. KAMM, Lavina Kamm, Wilber Kamm, Elmer Kamm, Gerald Kamm, Alweg, Inc., Kamm & Schellinger Company, LaSalle Hotel Realty Corp., Hotel LaSalle, Inc., and Columbia Corporation, Appellees.

Page 802

214 N.E.2d 802

139 Ind.App. 687

Harriet Kamm NYE, Lois Kamm, Natalie Kamm Wolf, William Kamm, and Valarie Kamm, Appellants, v. Albin J. KAMM, Lavina Kamm, Wilber Kamm, Elmer Kamm, Gerald Kamm, Alweg, Inc., Kamm & Schellinger Company LaSalle Hotel Realty Corp., Hotel LaSalle, Inc., and Columbia Corporation Appellees.

No. 20345.

Appellate Court of Indiana, In Banc.

March 11, 1966.

[139 INDAPP 688]

Jay E. Darlington, Hammond, for appellants.

Gerald A. Kamm, Doran, Manion, Boynton & Kamm, South Bend, John J. Davie, J. Patrick Smith, La Porte, for appellees.

[139 INDAPP 689] PER CURIAM.

On December 16, 1965, we handed down an opinion, 212 N.E.2d 397, granting appellees' motion to dismiss an appeal in the above captioned action. At that time we based our dismissal upon the fact that several of the parties to the action below died prior to judgment, and their duly appointed representatives were not substituted, either as defendants below or as appellees on appeal. We cited as controlling a similar situation which occurred in Swasey v. Hudson Lake Resorts, Inc. (Ind.App.1965), 204 N.E.2d 666, in which Judge Hunter, speaking for this court, held the above facts to constitute a violation of Supreme Court Rule 2-6 and further created a lack of jurisdiction in this court.

The reasoning in the Swasey case based upon a long line of previous decisions which have interpreted that portion of Rule 2-6 which states: 'Failure properly to name parties will not be treated as jurisdictional.'--as referring only to those instances where a party's name was incorrectly listed to some degree; but not to situation in which a party was entirely omitted. McArdle v. Board of Zoning Appeals, etc. (1960) 131 Ind.App. 5, 167 N.E.2d 608; Baugher et al. v. Hall, Receiver, etc. (1958) 238 Ind. 170, 147 N.E.2d 591; Allmon et al. v. Review Board, etc. et al. (1953) 124 Ind.App. 212, 116 N.E.2d 115.

However, in their petition for rehearing, appellants have relied upon Jasper & Chicago Motor Express v. Ziffrin Truck Lines, Inc. [139 INDAPP 690] (1961), 241 Ind. 643, 175 N.E.2d 20, in which the Supreme Court said:

'We disapprove the statement in the opinion of the Appellate Court to the effect that the failure to name a party in the assignment of errors is jurisdictional.'

In deference to words of the Supreme Court, we must agree that the Jasper case has modified the above mentioned treatment afforded the quoted portion of Rule 2-6, however, it should have no effect on...