Hay v. Isetts
| Decision Date | 03 December 1929 |
| Citation | 125 So. 237,98 Fla. 1026 |
| Parties | HAY et al. v. ISETTS et ux. |
| Court | Florida Supreme Court |
Commissioners' Decision.
Suit by Frank W. Isetts and wife against Mary G. Hay and others. From the decree, defendants appeal. Appeal dismissed.
One or more defendants may take appeal in name of themselves and codefendants without codefendants' consent.
Syllabus by the Court
One or more defendants may take appeal in name of themselves and codefendants without codefendants' consent. One or more of several defendants have the right to take an appeal for and in the name of themselves and their codefendants, without the consent of such codefendants.
On appeal or writ of error in which all parties directly affected by judgment are not made parties, court will decline to proceed. Where an appeal or writ of error is taken, and all the parties who are directly affected by the judgment order, or decree appealed from are not duly made parties in the appeal or writ of error, the court will decline to proceed, because the parties who should be, but are not brought into court in the case, will not be bound by the appellate judgment, decree, or order, and the court does not dispose of a matter by piecemeal.
With certain exceptions, appeal from joint judgment taken by less than all parties against whom judgment is rendered, will be dismissed. An appeal from a joint judgment taken by less than all of the parties against whom the joint judgment is rendered will be dismissed, unless the appeal taken is sufficient to transfer the cause to the appellate court, and all the other joint defendants appear in the appellate court and join in the appeal, or unless the parties taking the appeal have summons and severance or equivalent proceedings in order to eliminate the parties who could have joined, but did not join, in taking the appeal so as to permit those who take the appeal to prosecute the same without the other parties; such other parties as will as those taking the appeal being then bound by the determination of the appeal.
Appeal or writ of error recorded in trial court's records must include all appellees or defendants in error to give jurisdiction of their persons; if all appellees or defendants in error are not included in appeal or writ of error as recorded, writ of error or appeal will be dismissed, unless such persons appear. Under the statutes requiring writs of error and appeals taken to the Supreme Court in civil actions and suits, to be recorded in record books of the trial court as a means of giving the Supreme Court jurisdiction of the persons of the appellees or defendants in error, it is necessary that the appeal or writ of error that is recorded shall properly include all of the appellees or defendants in error, and, if this is not done, the writ of error or appeal will be dismissed, unless all those not duly made appellees or defendants in error appear in the cause.
Mortgagor who has conveyed his interest and is made party to foreclosure suit, in which personal judgment for deficiency is sought against him, is 'necessary party' to appeal from foreclosure decree. If a mortgagor, who has conveyed his interest in the mortgaged premises, has been made a party to the foreclosure suit, in which a personal judgment for any deficiency is sought against him, he is a necessary party to an appeal from the decree made and entered in said suit.
Fee owner of mortgaged premises is 'necessary party' to appeal from foreclosure decree. The owner of the fee in mortgaged premises is a necessary party to an appeal from a decree foreclosing the mortgage.
Second mortgagee made party defendant to foreclosure suit is 'necessary party' to appeal from decree subordinating second mortgage lien to complainant's lien. When the holder of a second mortgage is made a party defendant to the foreclosure suit, and the decree therein subordinates the lien of the second mortgagee to that of the complainant, the second mortgagee is a necessary party to an appeal from such decree.
Appellate court is without jurisdiction of parties having pecuniary interest in decree appealed from, but not parties to appeal statutes being inapplicable (Comp. Gen. Laws 1927, §§ 4635, 4636). When an appeal has been taken, and parties who have a vital and pecuniary interest in the decree appealed from are not made parties to the appeal, the appellate court is without jurisdiction of such parties, and cannot determine their rights as effected by the final decree, and the provisions of sections 4635 and 4636, Compiled General Laws of Florida 1927, do not apply.
Necessary parties omitted from appeal, and not voluntarily submitting themselves to appellate court's jurisdiction, cannot be made parties to appeal after time for appeal has expired. When necessary parties are omitted from an appeal, and such parties have not voluntarily submitted themselves to the jurisdiction of the appellate court, and the time for taking an appeal has expired, they cannot be made parties to the appeal, and such appeal will be dismissed sua sponte by the court.
Statute prohibiting dismissal of writ of error or appeal for want of 'proper parties' does not apply to 'necessary parties' (Comp. Gen. Laws 1927, § 4635). That provision of section 4635, Comp. Gen. Laws 1927, which inhibits the dismissal of a writ of error or appeal for want of 'proper parties,' is construed to apply to merely proper as distinguished from necessary parties.
Party injured by judgment should not be deprived of appellate review because he fails to bring in nominal parties having no real interest in whether judgment is reversed or affirmed (Comp. Gen. Laws 1927, § 4636). A party aggrieved and injured by judgment of trial court should not be deprived of appellate review merely because he fails to bring in nominal or useless parties who have no real or substantial interest in whether the judgment or decree appealed from is reversed or affirmed.
Whether party is essential or necessary party to adjudication is ultimately a judicial, not legislative, question. Whether a party is or is not an essential or necessary party to the adjudication of a cause is ultimately a judicial, and not a legislative, question.
Appeal from Circuit Court, Volusia County; M. G. Rowe, judge.
R. L. Selden, of Daytona Beach, for appellants.
Horn & Ossinsky, of Daytona Beach, for appellees.
Frank W. Isetts, and his wife, Emilie L. Isetts, joined by her husband, Frank W. Isetts, for the purpose of the suit, instituted proceedings against D. Krokover and his wife, Paulina Krokover (also known as Pauline Krokover), joined by her husband, D. Krokover, for the purpose of the suit, Mary G. Hay, joined by her husband, William R. Hay, for the purpose of the suit, William R. Hay, Percy C. Pachtman, Florence Goldsmith, joined by her husband, ----- Goldsmith, and Mary G. Hay, Inc., for the foreclosure of a real estate mortgage.
The bill of complaint shows the execution and delivery by D. Krokover, Mary G. Hay, and William H. Hay of three promissory notes payable to the order of Frank W. Isetts and his wife, Emilie L. Isetts, on or before one, two, and three years after date, respectively, in the aggregate sum of $20,000, with interest, payable semiannually at the rate of 8 per cent. per annum until paid; that, to secure the payment of said promissory notes, D. Krokover and his wife, Pauline Krokover, by D. Krokover, her attorney in fact, and Mary G. Hay, joined by her husband, William R. Hay, executed and delivered to the complainants a mortgage deed covering the property set out in the bill of complaint; that, because of the failure of the makers of the notes for more than 30 days to pay the interest after it became due and payable, complainants exercised their option to declare the whole sum due and payable; that said mortgage is a prior lien, and superior to all other claims on the property; that fee-simple title to an undivided one-half interest in the land at the time of the filing of the bill of complaint was in Florence Goldsmith by virtue of a deed from D. Krokover and his wife, and that the fee-simple title to the other undivided one-half interest in said land at the time of the filing of the bill of complaint was in the defendant Mary G. Hay, Inc., by virtue of a deed from Mary G. Hay and her husband, William R. Hay; that on the 13th day of November, 1925, prior to the execution and delivery of the deed to the said Florence Goldsmith, the said D. Krokover mortgaged his undivided one-half interest in the said premises to Percy C. Pachtman.
The complainants prayed, among other things, that the defendants be decreed to pay to complainants whatever sum might appear to be due them, and that they might have a deficiency decree against D. Krokover and William R. Hay. Upon final hearing, the court decreed that D. Krokover, Mary G. Hay, and William R. Hay pay to the complainants the sum found to be due them; that all of the defendants be forever barred and foreclosed of and from all equity of redemption in and to the said property, and that, in the event the said premises failed to sell for sufficient to pay the costs and the amounts by the decree ordered to be paid, the special master appointed to make the sale report such shortage to the court, and such further order to be made under such report as to the court may seem proper.
From this decree the following appeal was taken and entered:
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...or proper parties, a brief review of some of our decisions on the subject may be helpful to the profession. In the recent case of Hay v. Isetts, supra, this court pursuant to its former decisions, that, where essentially necessary parties are omitted from an appeal, and such parties have no......
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