Tice v. Thompson

• Decision Date: 24 June 1965
• Docket Number: No. 20019,No. 2,20019,2
• Citation: 137 Ind.App. 338,208 N.E.2d 203
• Court: Indiana Appellate Court
• Parties: Landon TICE, Appellant, v. John THOMPSON, Thompson & Johnson, Inc., Appellees

Page 203

208 N.E.2d 203

137 Ind.App. 338

Landon TICE, Appellant, v. John THOMPSON, Thompson & Johnson, Inc., Appellees.

No. 20019.

Appellate Court of Indiana, Division No. 2.

June 24, 1965.

[137 INDAPP 339] Phillip J. Badell, David A. Malson, Rushville, for appellant.

,Vance M. Waggoner, Rushville, for appellees.

BIERLY, Chief Justice.

This was an action instituted by the appellant for damages for loss of a vehicle by the appellees, as bailee. At the conclusion of appellant's evidence, appellees filed their respective motions for directed verdicts which were sustained by the court.

At the outset appellees argue that this court is without jurisdiction of this appeal because of a defect in the parties named in the assignment of errors. We agree with the appellees and feel constrained to set forth our reasons at length due to the uncertainty that exists in this matter. We are aided in our discussion by the cogent arguments of the appellees.

Rule 2-6 of our Supreme Court provides in pertinent part:

'In the title to the assignment of errors all parties to the judgment seeking relief by the appeal shall be named as appellants, and all parties to the judgment whose interests are adverse to the interests of the appellants shall be named as appellees. * * * Failure properly to name parties will not be treated as jurisdictional. Amendments may be permitted upon such terms as the court shall direct.'

[137 INDAPP 340] The judgment of the trial court, omitting formal parts, is as follows:

'IT IS THEREFORE, CONSIDERED, ORDERED AND ADJUDGED by the Court that the defendants, John Thompson and Thompson & Johnson, Inc., and each of them, have Appellant's assignment of Error, as it appears in the transcript and brief, is as follows:

judgment in this cause against the plaintiff, Landon Tice, and the costs of this action are hereby assessed against the plaintiff, Landon Tice.'

'In the Appellate Court of Indiana

'Landon Tice, Appellant

ASSIGNMENT OF ERROR

vs.

John Thompson, et al., Appellee

'The appellant avers that there is manifest error in the judgment and proceedings in this cause, which is prejudicial to appellant, in this:

'1. The court erred in overruling appellant's motion for new trial.'

In Indiana Constr. Material Co. v. Gelopulos (1961), 131 Ind.App. 494, 172 N.E.2d 72, this court held:

'* * * Pursuant to Rule 2-6, the use of the expression 'et al.' following the names of the appellant or appellee in the caption, does not confer jurisdiction over those who are necessary parties to an appeal. (and cases cited).'

The paramount question we must consider and determine in the case at bar is whether the defect of parties in the assignment of errors constitutes such a violation of Rule 2-6 that it is imperative on our part to dismiss this appeal.

In Haney v. Denny's Estate (1962), Ind.App., 183 N.E.2d 346, 349, this court, in ruling on [137 INDAPP 341] a motion to dismiss by appellee, and speaking through Kelley, C. J., held:

'Said Rules 2-6 provides, in part:

"Failure properly to name parties will not be treated as jurisdictional.' (our emphasis).

'In Allmon et al. v. Review Board, etc., et al. (1953), 124 Ind.App. 212, 215, 116 N.E.2d 115, 116, we held that said quoted part of said rule referred to 'misspelling of names, initials or where incorrect given names are listed or other similar means of identification. It does not refer to where there is a total lack or failure on the part of those taking an appeal to name in the assignment of errors the proper party appellants.'

'In 1958 our Supreme Court, then composed of the same membership as at present, with one exception, in Baugher et al. v. Hall, receiver, etc., [238 Ind. 170, 147 N.E.2d 591], supra, a Per Curiam opinion, quoted from and impliedly approved the holding in said Allmon case, supra, and noted that 'considerable confusion has resulted in the interpretation and effect of failure to name parties on appeal' and that 'the situation should now be clarified.' The clarification made thereby was that said Rule 2-6 'does not dispense with the necessity of naming in the assignment of errors 'all parties to the judgment seeking relief by the appeal' and 'all parties to the judgment whose interests are adverse to the interests of the appellants." The appeal was dismissed for the failure of appellant to name the Receiver in the assignment of errors, there being 'no amendment sought or made within time to the assignment of errors.' (Emphasis supplied).

'Said Baugher case, supra, further held that where appellant fails to name, as appellees, all parties to the judgment who have an adverse interest to appellant, 'this court does not acquire jurisdiction of the appeal. * * * This is a requirement which, of course, can not be waived nor modified by this court.' (Our emphasis).

'However, by the Per Curiam opinion in Jasper & Chicago Motor Express, Inc. v. Ziffrin Truck Lines ([241 Ind 643] 175 N.E.2d 20), supra, the Supreme Court [137 INDAPP 342] did, in fact, modify the rule adhered to in the Baugher v. Hall case, supra, and, in effect, held that the failure to name a party in the assignment of errors is not jurisdictional. The court proceeded further to declare a denial of transfer because 'after the appellant's attention was called to the defect in the parties named in the assignment of errors, no application or attempt was made to amend', as provided in said Rule 2-6. (Emphasis supplied).

'The Supreme Court, in said Ziffrin case last referred to, made no observation as to when or within what time the application or petition to amend the assignment of errors with respect to parties should be made or tendered. Should such application to amend be made prior to the expiration of the time provided or allowed for perfecting the appeal? Can it be made at any time before the opinion in the case is handed down? Can it be made as a part of the petition for a rehearing? Under said Rule 2-6 does the appellate tribunal possess a discretion as to the time within which the application to amend must be made? If so, can such discretion by varied with respect to each case? By what rule are counsel for the parties to be guided? Shall there exist one rule as to time in the Supreme Court and a different time rule in the Appellate Court? These and other questions remain undetermined.

'* * *.

'* * * Since the Supreme Court hs determined, see theZiffrin case (241 Ind. 643, 175 N.E.2d 20), supra, that the failure to name a party in the has determined, see the Ziffrin case it would seem logically to follow that the time for the filing of an application to amend the assignment of errors, in respect to the parties, should be determined not by the expiration of the time allowed for the perfection of the appeal but by the circumstances of the particular case and the good faith of and promptness of action by the appellant as exhibited by the allegations of his verified petition or application for the right to amend.' (Our emphasis).

In the Haney case, supra, the appellee had filed a motion[137 INDAPP 343] for an extension of time within which to file his brief on the merits, before his petition for...