Richardson v. Thompson

• Decision Date: 23 November 1899
• Docket Number: 10,622
• Citation: Richardson v. Thompson, 80 N. W. 909, 59 Neb. 299 (Neb. 1899)
• Parties: WILLIAM RICHARDSON v. FRANK THOMPSON, EXECUTOR, ET AL
• Court: Nebraska Supreme Court

80 N.W. 909

59 Neb. 299

WILLIAM RICHARDSON v. FRANK THOMPSON, EXECUTOR, ET AL

No. 10,622

Supreme Court of Nebraska

November 23, 1899

ERROR from the district court of Douglas county. Tried below before SCOTT, J. Heard on motion to dismiss the proceeding in error. Motion sustained.

Petition DISMISSED.

W. T Nelson and Rush J. Thomson, for the motion.

McCabe McGilton & Rath and McGilton & Herring, contra.

OPINION

NORVAL, J.

This is a motion to dismiss the petition in error because, while Boswell R. Wiles and Elizabeth E. Wiles, defendants in the court below, were made defendants in error, no summons in error has been served upon either of them. The suit was instituted in the district court by Frank Thompson, executor, and Joe R. Lane, administrator with the will annexed of James Thomson, deceased, to foreclose a mortgage executed by Boswell R. and Elizabeth E. Wiles. William Richardson was also made a defendant, who filed a cross-petition praying the foreclosure of a tax-sale certificate upon the mortgaged premises. A general demurrer to the cross-petition was interposed by the plaintiffs, and the cross-petition dismissed. William Richardson prosecuted error to this court, making all the other parties to the suit in the district court defendants in error herein; but no summons in error has been served on either of the Wiles, nor have they made a voluntary appearance in this court.

We have repeatedly held that in an error proceeding all the parties to a joint judgment must be made parties, either plaintiff or defendants in error, and if not, the petition in error will be dismissed when the objection is seasonably made. See Wolf v. Murphy, 21 Neb. 472, 32 N.W. 303; Hendrickson v. Sullivan, 28 Neb. 790, 44 N.W. 1135; Curten v. Atkinson, 29 Neb. 612, 36 Neb. 110; Consaul v. Sheldon, 35 Neb. 247, 52 N.W. 1104; Andres v. Kridler, 42 Neb. 784, 60 N.W. 1014; Polk v. Covell, 43 Neb. 884, 62 N.W. 240; Farney v. Hamilton County, 54 Neb. 797, 75 N.W. 44. As we understand the doctrine of the cases, it is that all parties to a cause in the trial court who may be affected by the modification or reversal of the judgment must be made parties to the proceeding to review said cause. If one can not be affected by the error proceeding, he need not be made a party, although a party to the record in the court below (Kuhl v. Pierce County, 44 Neb. 584, 62 N.W. 1066), and this doctrine is abundantly sustained by the authorities.

Hunderlock v. Dundee Mortgage & Trust Investment Co. 88 Ind. 139 was a suit to foreclose a real estate mortgage, the mortgagors and prior mortgagee being made defendants. A decree of foreclosure was entered, a personal judgment was rendered against the mortgagors, and the lien of plaintiff was made junior to the lien of a prior mortgage. Plaintiff appealed, without making the mortgagors parties to the appeal. On motion of the appellee, the prior incumbrancer, the appeal was dismissed because the mortgagors were not made parties to the appeal, the court holding that all parties to the judgment below affected thereby must be made parties to the appeal, or the appeal will...