Starkey v. Starkey

• Decision Date: 16 February 1906
• Docket Number: 20,653
• Citation: 76 N.E. 876,166 Ind. 140
• Parties: Starkey et al. v. Starkey et al
• Court: Indiana Supreme Court

76 N.E. 876

166 Ind. 140

Starkey et al. v. Starkey et al

No. 20,653

Supreme Court of Indiana

February 16, 1906

From Marion Circuit Court (20,579); Merle N. A. Walker, Judge pro tem.

Action by Francis P. Starkey and others against Alonzo L. Starkey and others. From a judgment for defendants, plaintiffs appeal.

Affirmed.

Frederick W. Cady, for appellants.

C. R Cameron, Pierre Gray and Elias D. Salsbury, for appellees.

OPINION

Montgomery, J.

This action was brought by appellants to contest the will of William H. Starkey, deceased, on the grounds that (1) the testator was of unsound mind, and (2) the will was unduly executed. Appellees Densmore and Mesker answered jointly Alonzo L. Starkey answered separately, and also in his capacity as executor filed a separate answer; and Della Starkey filed no answer. Appellants' demurrers to the affirmative paragraphs of answer were overruled, and, electing to stand upon said demurrers and declining to plead further, judgment was rendered against them for costs.

Appellants jointly assign as error the overruling of their demurrer (1) to the second, fourth and fifth paragraphs of answer of the Densmores and Mesker; (2) to the second paragraph of the separate answer of Alonzo L. Starkey; and (3) to the second paragraph of the answer of Alonzo L. Starkey as executor.

Francis P. Starkey assigns as error the overruling of his separate demurrer to the fourth paragraph of answer of the Densmores and Mesker, and Joseph L. Starkey assigns as error the overruling of his separate demurrer to the fifth paragraph of said answer.

Appellee Della Starkey was a devisee under the will in suit, and was made a party defendant. Proof of notice to her by publication was filed in the court below, but no default was entered. Appellees insist that the record does not show a disposition of the case as to Della Starkey, and for that reason the judgment is not final, and this court is without jurisdiction. Appeals lie only from final judgments, except in a few instances for which special provisions have been made. A judgment is not final unless it disposes of the cause both as to the subject-matter and parties, so far as the court before which it is pending has power to dispose of it. Elliott, App. Proc., 85, 90, 91; Keller v. Jordan (1897), 147 Ind. 113, 115, 46 N.E. 343; Champ v. Kendrick (1892), 130 Ind. 545, 546, 30 N.E. 635.

It is not shown that the cause was continued as to Della Starkey, or was left pending in the court below for any purpose. The record discloses that appellants declined to plead further, and thereupon it was adjudged that "the defendants jointly and severally, and separately and severally, have and recover of and from the plaintiffs their costs herein laid out and expended." This language is broad enough to include Della Starkey, and in the consideration of the question now presented we are not disposed to look beyond the face of the judgment, and thereupon hold that the cause was finally terminated as to Della Starkey as well as the other defendants.

The second paragraph of answer of appellees Densmore and Mesker was by leave of court withdrawn, and any alleged error predicated thereon is no longer entitled to consideration. The fourth paragraph of said answer purports to answer only so much of the complaint as states a cause of action in favor of Francis P. Starkey, and the fifth paragraph purports to answer only so much of the complaint as states a cause of action in favor of Joseph L. Starkey. It is accordingly manifest that Joseph L. Starkey was not affected by the court's ruling as to the fourth paragraph, and Francis P. Starkey was not interested in the ruling as to the sufficiency of the fifth paragraph of said answer. It is well settled that parties can not properly join in assigning errors which affect them severally, and for want of a community of interest in the parties we can not consider the sufficiency of either of these paragraphs of answer upon the joint assignment of error. Bush v. McBride (1903), 159 Ind. 663, 65 N.E. 1026; Bolt v. Ward (1901), 156 Ind. 382, 59 N.E. 1053; Yeoman v. Shaeffer (1900), 155 Ind. 308, 57 N.E. 546; Crist v. Wayne, etc., Assn. (1900), 155 Ind. 260, 57 N.E. 545; In re Paskins (1900), 155 Ind. 173, 57 N.E. 911.

The second and third joint assignments of error question the sufficiency of the answer of Alonzo L. Starkey. The answers filed in his own behalf and as executor were in substance the same. These assignments, so far as they relate to Joseph L. Starkey, are not presented in any manner, supported, or discussed in appellants' brief, and must therefore be treated as waived. Storer v. Markley (1905), 164 Ind. 535, 73 N.E. 1081; Williams v. Citizens Enterprise Co. (1899), 153 Ind. 496, 55 N.E. 425; Hoover v. Weesner (1897), 147 Ind. 510, 45 N.E. 650; Guy v. Blue (1897), 146 Ind. 629, 45 N.E. 1052.

The waiver of objection and tacit admission of the sufficiency of the answers by Joseph L. Starkey would ordinarily preclude his joint assignor Francis P. Starkey from further questioning their sufficiency under these assignments. These answers, as addressed to the complaint of Joseph L. Starkey, were manifestly patterned after the answer considered by this court in the case of Keys v. Wright (1901), 156 Ind. 521, 60 N.E. 309; and upon the authority of that case the overruling of the demurrer as to Joseph L. Starkey was justified. The second and third alleged errors jointly assigned, not being well taken as to Joseph L., are likewise unavailing to Francis P. Starkey. Sibert v. Copeland (1896), 146 Ind. 387, 390, 44 N.E. 305; Yeoman v. Shaeffer, supra.

The fourth paragraph of answer of the Densmores and Mesker answering the complaint as to Francis P. Starkey, averred: "That the will mentioned in the complaint states and contains, among others, the following devises, bequests and provisions, to wit: '(2) To Della Starkey, wife of my brother Francis P. Starkey, I give and devise lot sixty-two in Sarah Starkey's second addition to the city of Elwood, in Madison county, Indiana. (3) To my brother Joseph L. Starkey I give and devise lot sixty-three in said addition.' That said Francis P. Starkey, named in said item two of said will, is the same Francis P. Starkey who has by the name of Francis P. Starkey appeared and sued as plaintiff herein, and he is the husband of Della Starkey mentioned in item two of said will and who is made defendant in this cause; that immediately after the death of said William H. Starkey and the probate of said will, said Della Starkey, with full knowledge of the mental condition of said William H. Starkey, deceased, at the time said will was executed, and with full knowledge of the manner in which and the circumstances under which the same was executed,...