Second Nat. Bank v. Scudder

• Decision Date: 17 March 1937
• Docket Number: 26701.
• Citation: 6 N.E.2d 955,212 Ind. 283
• Parties: SECOND NAT. BANK OF ROBINSON, ILL., v. SCUDDER et al.
• Court: Indiana Supreme Court

6 N.E.2d 955

212 Ind. 283

SECOND NAT. BANK OF ROBINSON, ILL., v. SCUDDER et al.

No. 26701.

Supreme Court of Indiana

March 17, 1937

Appeal from Daviess Circuit Court; Frank E. Gilkison, Judge.

Embree & Baltzell, of Princeton, for appellant.

Mattingly & Myers, of Washington, Ind., G. D. Dean, of Indianapolis, and Geo. W. Lackey, of Lawrenceville, Ill., for appellees.

HUGHES Judge.

The appellees, Eugene H. Hartman, Fred L. Hartman, and Elizabeth L. Hartman, have filed motion to dismiss this appeal for the reason that the appellants have not named in the assignment of errors all parties who are necessary to the appeal, and therefore this court has no jurisdiction of the case.

It appears from the record that a large number of defendants were defaulted. Part of the defaulted defendants were personally served by summons, while other defaulted defendants were constructively served by notice. The following defendants who are not named in the assignment of errors were duly notified of the filing and pendency of the action in the court below by publication John H. Taylor, Lula C. Taylor, Grant Taylor, Cora Taylor Ada Hiteshew, Otto Geiger, Mrs. Otto Geiger, Walter Sargent, Mrs. Walter Sargent and Ella C. Peek.

The action was to recover judgment on certain notes and to foreclose a mortgage which had been executed to secure said notes.

It is alleged in the complaint that Fred L. Hartman, Elizabeth L. Hartman, Grant Taylor, and John H. Taylor executed the notes sued upon, and that to secure the payment of said notes John H. Taylor and Lula C. Taylor executed a mortgage on certain real estate and personal property to secure the payment of said notes.

It is also alleged that all of said defendants are claiming an interest in said property so mortgaged, all of which is adverse and inferior to the interests of the plaintiff under said mortgage. In the prayer of the complaint, the plaintiff demands personal judgment against the defendants John H. Taylor, Grant Taylor, Fred L. Harman, and Elizabeth Hartman, for a large sum of money; that the description of the real estate in the mortgage be corrected to conform to the true description and for a decree foreclosing said mortgage as against all the defendants; and that the plaintiff be adjudged to have a prior and superior lien against all of said property as against all of said defendants.

The assignment of errors constitutes the appellant's complaint in this court, and rule 6 of this court provides that the assignment of errors shall contain the full name of all parties to the judgment. As said in the case of Gourley v. Embree, 137 Ind. 82, 36 N.E. 846, 847: 'The assignment of errors constitutes the appellant's complaint in the supreme court, and by it he must bring the proper parties before the court, and properly set forth the causes upon which he relies for relief. A failure to do any of these things is fatal to his standing in court. He cannot have a lawsuit by himself, nor can be select from the parties to the final judgment such as he chooses to name, and omit the others. He must name all who are affected by the judgment appealed from. If he has not done so, the assignment of error will be held unavailing whenever the defect is brought to the notice of the court.'

It is the rule that it is only parties to judgment and not merely parties to the record who must be made parties to an appeal. But when parties to the record will necessarily be affected in their interest by the action or judgment by appeal, they must be joined as parties. Trippeer v. Clifton, 178 Ind. 198, 97 N.E. 791, 39 L.R.A. (N.S.) 522.

The judgment rendered in the instant case is as follows:

'The court being advised finds for the defendant and that the plaintiff take nothing on its complaint herein and that the defendants recover of and from the plaintiff, all their costs and charges herein laid out and expended

'It is therefore considered, ordered and adjudged by the court that the plaintiff take nothing on its complaint herein and that the defendants recover of and from the plaintiff, all their costs and charges herein laid out and expended.'

As to those defendants who were personally served with process and made default, they are not necessary parties to this appeal. Prior to the Acts of 1911, c. 157, § 2, p. 415, sections 2-1007 and 2-1011, Burns' 1933, sections 111 and 115, Baldwin's Ind.St.1934, it was held in many cases of this court that a defaulting defendant could appeal to this court without first seeking to have the default set aside and assigned as error, upon the following reasons: (1) That the complaint did not state facts sufficient to constitute a cause of action; and (2) that the court did not have jurisdiction of the subject matter. Trippeer v. Clifton, supra; Lee v. Mozingo, 143 Ind. 667, 41 N.E. 454; McCoy v. Able, 131 Ind. 417, 30 N.E. 528, 31 N.E. 453; Robinson v. State, 177 Ind. 263, 97 N.E. 929.

Since the act of 1911 heretofore mentioned, which is an amendment to the Acts of 1881 (Spec.Sess.) c. 38, § 89, the sufficiency of a complaint cannot for the first time be questioned in this court in an assignment of error on appeal. Pittsburgh, C., C. & St. L. R. Co. v. Home Insurance Co., 183 Ind. 355, 108 N.E. 525, Ann.Cas.1918A, 828; Wagner v. Wagner, 183 Ind. 528, 109 N.E. 47; Cleveland C., C. & St. L. R. Co. v. Markle, 187 Ind. 553, 119 N.E. 371; Heck v. Wayman, 94 Ind.App. 74, 179 N.E. 785.

The provision in question is as follows: 'If no such objection is taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objection to the jurisdiction of the court over the subject of the action.' Section 2-1011, Burns' 1933, section 115, Baldwin's Ind.St.1934.

The only error that could now be assigned in this court by the defaulted defendants who were personally served with process is that the lower court did not have jurisdiction of the subject matter. It is clearly shown by the record that the court had jurisdiction of the subject matter. This being true, these defaulted defendants are not in any position to assert any error available to them. If the judgment had been against them, they could not have successfully appealed, for the reason that the only error they could have assigned would have been that the court did not have jurisdiction of the subject matter and they would have then been confronted with the record which shows that the court did have jurisdiction of the subject matter. They have no interest in maintaining the judgment, and no interest to be protected by the judgment on appeal. They are in the same position as if they had filed a disclaimer.

Where a defendant fails to demur or answer to a complaint and judgment is taken by default, such failure is a confession that the complaint is true as to the facts alleged therein, Stone v. Elliott, 182 Ind. 454, 106 N.E. 710; Rooker v. Bruce, 171 Ind. 86, 85 N.E. 351, except allegations of value or amount of damage which must be proved, Briggs v. Sneghan, 45 Ind. 14; Fisk v. Baker, 47 Ind. 534; Bash v. Van Osdol, 75 Ind. 186; Rooker v. Bruce, supra.

In the case of Fisk v. Baker, 47 Ind. 534, the appellant brought the action for the recovery of real estate described in the complaint and damages for its detention. The appellee Baker, who was defendant, made default. Among other things the court said: 'There was no demurrer to the complaint and consequently no issue of law in reference thereto. There was no answer to the complaint, and consequently no issue of fact. The failure of the appellee to demur or answer the complaint was a confession that the complaint was true as to the facts stated, and sufficient in law to entitle the...