Richardson v. Thompson

• Decision Date: 23 November 1899
• Citation: 59 Neb. 299,80 N.W. 909
• Parties: RICHARDSON v. THOMPSON ET AL.
• Court: Nebraska Supreme Court

59 Neb. 299

80 N.W. 909

RICHARDSON

v.THOMPSON ET AL.

Supreme Court of Nebraska.

Nov. 23, 1899.

Syllabus by the Court.

All the parties to a joint judgment, or who may be affected by the modification or reversal thereof, must be made parties in this court upon proceeding in error, and a failure to do so is a ground for dismissal if the objection is seasonably made.

Error to district court, Douglas county; Scott, Judge.

Action by Frank Thompson and Joe R. Lane against William Richardson and others. Demurrer to cross petition sustained, and Richardson brings error. Dismissed.McCabe, McGilton & Rath and McGilton & Herring, for plaintiff in error.

W. T. Nelson and Rush J. Thomson, for defendants in error.

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 Thompson, 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 Wileses, 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 plaintiffs or defendants in error, and, if not, the petition in error will be dismissed when the objection is seasonably made. Wolf v. Murphy, 21 Neb. 472, 32 N. W. 203;Hendrickson v. Sullivan, 28 Neb. 790, 44 N. W. 1135;Curten v. Atkinson, 29 Neb. 612, 46 N. W. 91;Id., 36 Neb. 110, 54 N. W. 131;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 Co., 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 cannot 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 Co., 44 Neb. 584, 62 N. W. 1066), and this doctrine is abundantly sustained by the authorities. Hunderlock v. 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...