Tri State Loan & Trust Co. v. Fell

• Citation: 86 Ind.App. 605,156 N.E. 167
• Decision Date: 22 April 1927
• Docket Number: No. 12549.,12549.
• Court: Court of Appeals of Indiana
• Parties: TRI STATE LOAN & TRUST CO. v. FELL et al.

86 Ind.App. 605

156 N.E. 167

TRI STATE LOAN & TRUST CO.

v.FELL et al.

No. 12549.

Appellate Court of Indiana, in Banc.

April 22, 1927.

Appeal from Allen Circuit Court; Sol. A. Wood, Judge.

Action by James Fell and others against the Tri State Loan & Trust Company, as executor and as trustee, and others, to set aside the will of Julia Poinsette, deceased. From a judgment setting aside the will, and the probate thereof, the named defendant appeals. On motion to dismiss appeal. Appeal dismissed.

Aiken, Grant & Aiken, of Ft. Wayne, for appellant.

John W. Eggeman and William N. Ballou, both of Ft. Wayne, for appellees.

NICHOLS, J.

Action by appellees against appellant, both as executor and trustee, Franklin A. Trick, Robert Wayne Trick, Florence Neuhans, Joseph Smith, Catherine Cameron, and Frank Trick, to set aside the will of Julia Poinsette, deceased. There was a trial by jury, which returned a verdict for plaintiffs and that the testatrix at the time of making the will involved was of unsound mind and incapable of making the same. Appellant filed a motion for a new trial, which was overruled by the court, after which judgment was rendered setting aside the will of deceased, and the probate thereof, from which this appeal. The judgment was in favor of the heirs at law of Julia Poinsette, deceased, and against the beneficiaries under the will so set aside.

[1] These heirs at law are appellees James F. Fell, Mary McMacken, and Rachel Trevey, brother and sisters, and the children of a deceased sister, to wit, appellees John Smith and Albert Smith, and Frank Trick, Joseph Smith, nephews, and Catherine Cameron, a niece, all of whom were parties below, and, except Frank Trick, who filed a disclaimer, should all have been made appellees in the assignment of error, which is the complaint on appeal. But the assignment of error fails to make Joseph Smith, Catherine Cameron, and Frank Trick appellees. For this failure appellees move to dismiss the appeal, contending earnestly that all parties to the judgment whose interests are adverse to those of the appellant must be made parties to the appeal.

There is merit in this contention as to Smith and Cameron. Rule 6 of the Supreme and Appellate Courts provides that the assignment of error shall contain the full name of all the parties to the judgment, and process, when necessary, shall issue accordingly.

[2][3] The test for choosing who shall be made parties is this: Has the party an interest that the judgment appealed from be maintained? The parties omitted as appellees mentioned in the motion were heirs at law of Julia Poinsette, the decedent, and were not beneficiaries under the will. The judgment setting aside the will was therefore a judgment in their favor...