Thompson v. The Connecticut Mutual Life Insurance Company

• Decision Date: 13 November 1894
• Docket Number: 16,900
• Parties: Thompson et al. v. The Connecticut Mutual Life Insurance Company et al
• Court: Indiana Supreme Court

38 N.E. 796

139 Ind. 325

Thompson et al. v. The Connecticut Mutual Life Insurance Company et al

No. 16,900

Supreme Court of Indiana

November 13, 1894

From the Lake Circuit Court.

The judgment is affirmed.

B Borders and F. L. Dukes, for appellants.

C. L Holstein and C. E. Barrett, for appellee.

OPINION

Howard, J.

This action was begun in the Pulaski Circuit Court, and was taken on change of venue, to the court below. It was brought by the appellee, the Connecticut Mutual Life Insurance Company against the appellees Gellinger and wife and Sourbeer and wife, to foreclose two mortgages, one against the Gellingers and one against the Sourbeers.

The appellants were also made defendants to assert any right which they might have. They filed their answer, and also a cross-complaint, to foreclose a mortgage set up by them against the insurance company, the Gellingers and the Sourbeers, all of whom answered the cross-complaint. Other pleadings were also filed.

The actions were consolidated. The court found that the insurance company had a first lien on the land in controversy, that the appellants had a second lien, and the company a third lien. A decree was entered accordingly, and the appellants then appealed to this court.

The insurance company, claiming that the appeal was not well brought, has filed a motion that it be dismissed, for the reason that the appeal bond was not approved by the court as required by law, and because notice to coparties not appearing was not given.

The judgment appealed from was rendered in the Lake Circuit Court, December 22, 1892. On the same day the appeal was prayed, and was granted by the court upon the filing of an appeal bond in the sum of $ 1,600, with John F. Borders and George W. Thompson as sureties. The time within which the bond should be filed was fixed at thirty days, which would extend until after the adjournment of the term of court. On January 18, 1893, in vacation of court, but within the thirty days allowed, the bond was filed, with the sureties and penalty as fixed by the court.

The questions, as raised by counsel on this motion, have not, as we believe, been expressly decided. We think, however, that the appeal so made was a term-time appeal, and was well taken, as provided by section 650, R. S. 1894 (section 638, R. S. 1881).

Judge Buskirk (Prac. 61), in stating what must be done to effect an appeal in term, under the statute, says:

"1. An appeal must be prayed for and granted by the court during the term of the court at which the judgment was rendered.

"2. The appeal bond must then be filed and approved by the court, or it must be filed within such time as the court may direct of record; but in either event the penalty of the bond must be fixed and the surety approved by the court.

"3. If the bond is not filed in term, the court must fix the penalty, * and direct in what time the bond must be filed.

"4. The bond must be filed within the time directed.

"5. The transcript must be filed in the office of the clerk of the Supreme Court within sixty days from the time the bond is filed."

This statement is approved as correct in Works' Prac., section 1088, and in Elliott's App. Proced., sections 247, 248, 249, 525 and notes. All these authorities hold, likewise, that where the appeal is taken during the term no notice is necessary.

In Ex parte Sweeney, 131 Ind. 81, 30 N.E. 884, it was adjudged: "That the filing of a bond is an essential step in perfecting a term appeal, and that where a bond is not filed within the time limited by the order granting the appeal, the appeal must be upon notice."

In Holloran v. Midland R. W. Co., 129 Ind. 274, 28 N.E. 549, which, like this, was a case where a part of the coparties had appealed, and had failed to notify a coparty who had not joined in the appeal, it was said by the court that when the provisions of section 650, R. S. 1894 (section 638, R. S. 1881), providing for appeals in term time, are complied with, no notice is required; that "this section requires the fixing of the penalty of the bond and the surety to be given, and that the same be approved by the court"; and that "when the bond is given and other steps taken, as required by this section, within the time fixed by the court, no notice of appeal is necessary."

In that case, the court found that the appeal was not taken in term, in accordance with the provisions of section 650, supra; and also that notice was not given, in accordance with section 647, R. S. 1894 (section 635, R. S. 1881), and the appeal perfected within one year from the date of the final judgment. It was, therefore, held that the appeal must be dismissed.

It has long been held, that, in a term time appeal, no notice is required to be given to adversary parties. From the foregoing authorities, it is equally clear, that, in a term time appeal, no notice need be given to coparties not appealing.

All the parties, coparties no less than adverse parties, are before the court, either in person or by counsel or both, when judgment is rendered, and the appeal in term taken; and all are there equally bound to be informed of what occurs in due course in the proceedings. Elliott's App. Proced., section 173.

When service is made on coparties, or notice given them, the service is had, or the notice given, as in case of adverse parties. Elliott's App. Proced., section 181. No good reason can therefore be advanced why coparties should receive notice of an appeal taken in term any more than adverse parties. All being present in court must be held to take notice of what is there done in due course of business.

If the appeal in this case, then, was an appeal in term we conclude that no notice to the coparties not appealing was necessary. It is enough to name them in the record and in the assignment of errors as parties to the appeal.

But counsel say that the appeal was not taken in term, for the reason that the appeal bond, as it appears in the record, was not approved by the court.

The penalty of the bond was fixed, and the sureties were named by the court. The court also fixed the time within which the bond should be filed, and it was filed within that time, in the sum fixed by the court, and with the sureties named in the order of the court.

Under the authorities which we have cited, we think this was sufficient. By the fact of naming the sureties, the court did, in effect, approve of them as such sureties for the sum fixed in the bond. The appeal was, therefore a term time appeal, which was fully perfected as required by the statute. We must, consequently, notwithstanding the earnest and learned argument of counsel, still adhere to the former ruling of this court, in the cases of Conaway v. Ascherman, 94 Ind. 187, and Wilson v. Bennett, 132 Ind. 210, 31 N.E. 184, and hold that no notice was necessary to the coparties not joining in the appeal. The motion to dismiss the appeal is overruled.

While, under the various assignments of error, numerous questions in relation to the pleadings, and the rulings of court are discussed in the briefs of counsel, we are yet satisfied that the merits of this case may best be considered in an examination of the special findings of the court, and the conclusions of law made at the request of the defendants, which are as follows:

"1. The court finds from the evidence that on the 20th day of December, 1870, Christian Blockberger became the owner of the southwest quarter of section two, township thirty-one north of range two west, in Pulaski county, Indiana, containing one hundred and sixty acres; that on the 2d day of November 1874, while owning said land he, by proper deed, in which his wife joined, conveyed said land to John Cupfer and Fritz Kupfer, who then became the owners in fee simple.

"2. The court finds that on the 14th day of August, 1877, John Kupfer, Maria E. Kupfer, his wife, and Fritz Kupfer, executed to the AEtna Life Insurance Company a mortgage on said land to secure a loan of $ 800, and that said mortgage was duly recorded in the recorder's office of Pulaski county, Indiana, in Mortgage Record H, page 314, and was so recorded September 1, 1877.

"3. And the court further finds that on the 4th day of September, 1877, John Kupfer, Maria E. Kupfer, his wife, and Fritz Kupfer, executed to Christian Blockberger a mortgage on the southwest quarter of section two, township thirty-one north, of range two west, Pulaski county, Indiana, and also upon the north half of the northwest quarter of section eleven, in the same town and range, county, and State, to secure the payment of a note of the same date, made by said John and Fritz Kupfer to Christian Blockberger, calling for two hundred and seventy-three dollars and seventy-two cents, and six per cent. interest from date, due in three years; that said mortgage contained covenants of warranty, and also contained an express promise to pay the debt thereby secured without any relief from valuation or appraisement laws, and said mortgage was properly recorded in the mortgage records of Pulaski county, Indiana, on the 4th day of September, 1877, in the recorder's office of Pulaski county, Indiana, in Mortgage Record H, page 322.

"4. And the court finds that out of said sum of eight hundred dollars so loaned said Kupfer by said AEtna Life Insurance Company, and secured by the mortgage referred to in finding two herein, the said Kupfer paid to Christian Blockberger all of the purchase-money yet due him for said southwest quarter of section two, except the sum of two hundred and seventy-three dollars and seventy-two cents, and the mortgage referred to in finding number three was given for the said balance due said Blockberger, and it was expressly agreed in said mortgage to Blockberger that the...