Polk v. Johnson
| Decision Date | 20 December 1906 |
| Docket Number | 20,896 |
| Citation | 79 N.E. 491,167 Ind. 551 |
| Parties | Polk v. Johnson, Receiver |
| Court | Indiana Supreme Court |
Original Opinion of October 3, 1906, Reported at: 167 Ind. 548.
Appellant insists, on petition for a rehearing, that our decision holding the Central Trust Company as receiver to be a necessary party to this appeal is erroneous. We have again examined the question, and find no reason to depart from that holding.
It is further urged that, if the trust company was a necessary party as held, it voluntarily appeared and asked to be made a party of record, and for that reason the appeal should be reinstated. The final order or judgment from which the appeal was prosecuted was rendered April 1, 1904, and appellant's motion for a new trial was overruled May 17, 1904. All steps necessary to perfect the appeal should have been taken within one year from the latter date. The Central Trust Company, receiver, a necessary party, was not joined. October 2, 1905, appellee filed his motion to dismiss the appeal on the ground of a defect of parties, and thereupon the trust company filed its appearance and request to be made a party. This was about six months after the expiration of the time allowed in which to perfect the appeal. No order was made by the Appellate Court upon this application, nor was the assignment of errors at any time amended so as to make the trust company a party thereto. The motion to dismiss could not be defeated by an appearance at that time, as after the lapse of the year given in which to appeal the Appellate Court could not acquire jurisdiction of a necessary party, and it made no attempt so to do. Holloran v. Midland R. Co. (1891), 129 Ind. 274, 28 N.E. 549; Lilly v. Somerville (1895), 142 Ind. 298, 40 N.E. 1088; Abshire v. Williamson (1898), 149 Ind. 248, 48 N.E. 1027; Michigan Mut. Life Ins. Co. v. Frankel (1898), 151 Ind. 534, 50 N.E. 304; Nordyke & Marmon Co. v. Fitzpatrick (1904), 162 Ind. 663, 71 N.E. 46.
It follows that the motion to dismiss was correctly sustained, and the petition for a rehearing is overruled.
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...to the fund in controversy is sufficient to show an interest in the subject-matter (Polk v. Johnson, 167 Ind. 548, 551, 78 N. E. 652, 79 N. E. 491), while the filing of appellant's motion for a new trial immediately following the decision of the court, and prior to the entry of judgment, wa......
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H. C. Smith Coal Company v. Finley
... ... The fact that appellant is a bona ... fide claimant to the fund in controversy is sufficient ... to show an interest in the subject-matter (Polk v ... Johnson [1906], 167 Ind. 548, 551, 78 N.E. 652, 79 ... N.E. 491), while the filing of appellant's motion for a ... new trial immediately ... ...
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...necessarily interested in maintaining the judgment rendered. Ewbank's Manual, § 149; Polk v. Johnson (1906) 167 Ind. 548, 78 N. E. 652, 79 N. E. 491;Moore v. Ferguson (1904) 163 Ind. 395, 72 N. E. 126;Whistler v. Whistler (1903) 162 Ind. 143, 144, 67 N. E. 984, 70 N. E. 152;Haymaker v. Schn......
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