Robinson v. Hilbrich, 15529.

• Decision Date: 06 November 1935
• Docket Number: No. 15529.,15529.
• Parties: ROBINSON et al. v. HILBRICH.
• Court: Indiana Appellate Court

101 Ind.App. 54

198 N.E. 120

ROBINSON et al.

v.HILBRICH.

No. 15529.

Appellate Court of Indiana, in Banc.

Nov. 6, 1935.

Appeal from Lake Circuit Court; T. Joseph Sullivan, Judge.

Suit by Leola Hilbrich Conn against Rose Robinson and others. From a judgment for plaintiff, defendants appeal.

Appeal dismissed.E. Miles Norton, Wilton J. Sherman, and Hedman & Barr, all of Crown Point, for appellants.

Floyd R. Murray and Galvin, Galvin & Leeney, all of Hammond, for appellee.

DUDINE, Chief Judge.

Leola Hilbrich Conn filed suit against appellants to establish a lost or destroyed last will of a decedent, and recovered judgment establishing such will.

Appellants' motion for new trial was overruled thereafter on March 15, 1935.

On June 10, 1935, appellants filed their transcript and assignment of errors in the office of the clerk of this court, which assignment of errors named “Leola Hilbrich” (not Leola Hilbrich Conn) as the sole appellee.

On October 4, 1935, Leola Hilbrich Conn filed a motion to dismiss the appeal, stating, as a ground therefor, that she was the plaintiff in said action and the person in whose favor the judgment was rendered, and she was not named as party appellee as required by the rules of this court.

On October 10, 1935, 209 days after the motion for new trial was overruled, appellants filed a petition for leave to amend the assignment of errors by naming “Leola Hilbrich Conn” as appellee in lieu of “Leola Hilbrich.” In said petition it is averred that appellee, Leola Hilbrich, and said Leola Hilbrich Conn are one and the same person; that appellee's maiden name was Leola Hilbrich, and “after her marriage she adopted the name Leola Hilbrich Conn.” The only excuse given for failure to set forth her name “Leola Hilbrich Conn,” as appellee, in the assignment of errors, is, that it occurred through inadvertence by a typographical error. Appellants further aver that the error was not noticed by them until September 30, 1935 (199 days after the motion for new trial was overruled).

We think the case of Jenkins v. Steele (1913) 55 Ind. App. 11, 102 N. E. 139, 103 N. E. 365, 367, is controlling here.

As was said by this court in that case: “The sixth rule of this court provides that the assignment of errors shall contain the full names of all the parties, and it has been uniformly held that a failure to set out the full names of all the parties to the judgment appealed from renders the assignment of errors defective and unavailing. The assignment of errors in this court constitutes the appellant's complaint, and the court only acquires jurisdiction over the parties whose names appear therein. The merits of the appeal cannot be determined where the party in whose favor the judgment was rendered is not before the court, and in such case it is the duty of the court to dismiss the appeal upon its own motion. *** When a case is brought to an appellate tribunal, the first duty devolving on the court is to determine its own jurisdiction. If the assignment fails to present error relating to the judgment shown by the transcript, the court acquires no jurisdiction to decide any question except that relating to its own jurisdiction. The assignment of errors must be made by the identical party or parties against whom the alleged erroneous judgment was rendered and against the party or parties in whose favor such judgment was rendered. If the judgment below is against one person and the error is assigned by another and different person, the court acquires no jurisdiction over the person against whom the judgment was rendered, and it becomes the duty of the court to dismiss the appeal whenever such want of jurisdiction is brought to its knowledge in any way.” (Citing long list of authorities.)

Paraphrasing said last sentence so as to make the reasoning more applicable to the instant case, it would be as follows: “If the judgment below is in favor of one person and the error assigned is against another person, the court acquires no jurisdiction over the person in whose favor the judgment was rendered, and it becomes the duty of the court to dismiss the appeal whenever such want of jurisdiction is brought to its knowledge in any way.”

[1] In that case this court quoted with approval from Whisler v. Whisler (1903) 162 Ind. 136, 67 N. E. 984, 70 N. E. 152, as follows: “In considering the sufficiency of an assignment of errors, all ambiguitiesor uncertainties therein will be construed against the pleading. The court cannot indulge any presumptions, and thereby supply what the appellant by his pleading may have possibly or probably intended.”

In Jenkins v. Steele, supra, judgment had been rendered against Leroy Jenkins. The assignment of errors named “Lee” Jenkins as the appellant. This court, on its own motion,...