Town of Windfall City v. State ex rel. Wood

• Decision Date: 07 June 1910
• Docket Number: No. 21,564.,21,564.
• Citation: 92 N.E. 57,174 Ind. 311
• Parties: TOWN OF WINDFALL CITY et al. v. STATE ex rel. WOOD.
• Court: Indiana Supreme Court

174 Ind. 311

92 N.E. 57

TOWN OF WINDFALL CITY et al.

v.STATE ex rel. WOOD.

No. 21,564.

Supreme Court of Indiana.

June 7, 1910.

Appeal from Circuit Court, Tipton County; J. C. Blacklidge, Special Judge.

Application by the State of Indiana, on the relation of George C. Wood, against the Town of Windfall City and others. From a judgment for relator, respondents appeal. Reversed, with instructions.

See, also, 172 Ind. 302, 88 N. E. 505.

W. O. Dean and Myers & De Witt, for appellants. Gifford & Gifford, for appellee.

MYERS, J.

Application for mandate by appellee against appellant the town of Windfall City and four named individuals, composing the board of trustees of that town, to compel the alleged refusal of appellants to act upon a petition on the part of relator to disannex certain described lands from the town. To the complaint the defendants addressed a demurrer reading, “The defendants in the above-entitled cause demur separately and severally to the alternative writ issued herein, and the verified complaint of plaintiff upon which said writ was issued,” for the reason that “neither said writ nor said verified complaint state facts sufficient to constitute a cause of action.” The court overruled the demurrer, the record reciting “to which ruling of the court the defendants at the time separately and severally except.” The defendants refused to plead further, and on December 19, 1908, judgment was rendered against them as on default “that the defendants the town of Windfall city and her trustees (naming them) should at the next regular meeting, being December 21, 1908, consider and adjudge, and determine upon the petition of relator, with reference to the matters therein set out, as in their judgment is right and proper, with reference to the matter of disannexing or retaining the lands of the relator, and, failing to do so, the said board shall answer unto this court for contempt of its order, and that plaintiff recover all costs of this suit.” From this judgment an appeal was prayed, bond fixed at $200 to be filed within 30 days, with a named surety approved, and the bond was filed January 16, 1909, but the transcript was not filed in this court until November 10, 1909, so that it became a vacation appeal.

Appellants' assignments of error are presentedunder five separate captions, all of which are entitled, “The Town of Windfall City et al. v. The State of Indiana, on Relation of George C. Wood.” The first assignment is that “the appellants separately and severally say that there is manifest error *** first, in that the court erred in overruling their separate and several demurrer to appellee's verified complaint, and alternative writ issued thereon; second, that the alternative writ of mandate and the application therefor do not state facts sufficient to constitute a cause of action. Each of the four personal defendants below, by his proper name, assigns error in overruling his separate and several demurrer to the verified complaint and the alternative writ issued thereon, and that the alternative writ of mandate and the application therefor do not state facts sufficient to constitute a cause of action. A motion has been made to dismiss the appeal for want of jurisdiction in the court, owing to the absence from the caption of the assignment of error, of the name of any party appellant, except the town of Windfall City. Pending the motion to dismiss the appeal, appellants, on March 17, 1910, sought leave to amend the assignment of errors, which we were compelled to deny, owing to the fact that the application was made after the expiration of the year for appealing had expired, for that would necessarily be extending the time for appeal, which we cannot do. Polk v. Johnson (1906) 167 Ind. 548, 78 N. E. 652, 79 N. E. 491;Chicago, etc., Co. v. Walton, 165 Ind. 642, 74 N. E. 988;Nordyke & Marmon Co. v. Fitzpatrick (1903) 162 Ind. 663, 71 N. E. 46;Moore v. Slack, 140 Ind. 38, 39 N. E. 237;Lawrence v. Wood, 122 Ind. 452, 24 N. E. 159;Doble v. Brown, 20 Ind. App. 12, 50 N. E. 38.

Rule 6 of this court (55 N. E. iv) requires that the assignment of errors shall contain the full names of all the parties, which is held to mean all necessary parties to the judgment, but not necessarily all parties to the action below. Smith v. Gustin, 169 Ind. 42, 80 N. E. 959, 81 N. E. 722;Keiser v. Mills, 162 Ind. 366, 69 N. E. 142;Gunn v. Haworth, 159 Ind. 419, 64 N. E. 911;North v. Davisson, 157 Ind. 610, 62 N. E. 447;Smith v. Fairfield, 157 Ind. 491, 61 N. E. 560;Lowe v. Turpie, 147 Ind. 652, 44 N. E. 25, 47 N. E. 150, 37 L. R. A. 233;Alexander v. Gill, 130 Ind. 485, 30 N. E. 525;Hogan v. Robinson, 94 Ind. 138. Here we have no party named in the caption as appellant, except “the town of Windfall City.”

Appellee also insists that the demurrer is joint, hence the assignment must be good as to all, and, as it is claimed that the trustees are not appellants, no question is presented. The demurrer was separate within the rule laid down in Whitesell v. Strickler (1906) 167 Ind. 602, 78 N. E. 845. In Ammerman v. Crosby, 26 Ind. 451, it was held that the failure to set out...