Thompson v. Cleveland, C., C. & St. L. Ry. Co., 15985.

• Decision Date: 22 November 1937
• Docket Number: No. 15985.,15985.
• Parties: THOMPSON v. CLEVELAND, C., C. & ST. L. RY. CO.
• Court: Indiana Appellate Court

105 Ind.App. 97
11 N.E.2d 81

THOMPSON
v.
CLEVELAND, C., C. & ST. L. RY. CO.

No. 15985.

Appellate Court of Indiana, in Banc.

November 22, 1937.

Appeal from Benton Circuit Court; Chas. M. Snyder, Judge.

Action by Robert D. Thompson against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company and another. From a judgment of dismissal as to the named defendant, the plaintiff appeals.

Appeal dismissed.

[11 N.E.2d 82]

Vaughan & Vaughan, of La Fayette, Fraser & Isham, of Fowler, Chas. D. Lesley, of La Fayette, and Carl M. Franceschini, of Fowler, for appellant.

Stuart, Stuart & Devol and Cable G. Ball, all of La Fayette, and Burton B. Berry and Wilbur G. Nolin, both of Fowler, for appellee.

BRIDWELL, Judge.

Appellant brought this action against the appellee and one Robert Pannell, and by his complaint sought to recover a judgment against both of the defendants thereto, the complaint charging that the negligence of the defendants caused the death of appellant's minor son, whose death resulted from injuries sustained by him when an automobile in which he was riding, and a train operated by appellee through its duly authorized agent, the defendant Robert Pannell, collided.

After the issues were closed the cause was submitted for trial by a jury and the following verdict was returned: “We the jury find for the plaintiff against the defendant, Cleveland, Cincinnati, Chicago & St. Louis Railway Company, and fix the amount of his damages at $7,000.00, and we further find for the defendant, Robert F. Pannell.” Judgment on the verdict in favor of the defendant Pannell was thereafter rendered on October 17, 1936, the date of the return of the verdict. Appellant, on November 14, 1936, filed his motion for a venire de novo, and his motion for a new trial as to both defendants. Appellee moved for a dismissal of the cause as to it. On December 23, 1936, the court overruled appellant's motion for a venire de novo, and overruled his motion for a new trial, appellant reserving an exception to each of said rulings. The separate motion of appellee to dismiss was sustained and appellant excepted. A judgment of dismissal as to said defendant was rendered. This appeal followed.

Appellee has entered its special appearance and filed a verified motion to dismiss the appeal, asserting therein that “this court has no jurisdiction of this appeal for the reason that one of the two defendants in the trial court, to-wit: Robert F. Pannell, who had a verdict of the jury in his favor and against the appellant (plaintiff) and who recovered a judgment on said verdict against appellant and is therefore adverse to appellant and interested in maintaining the verdict and judgment appealed...