Vordermark v. Wilkinson
| Decision Date | 18 February 1897 |
| Docket Number | 17,773 |
| Citation | 46 N.E. 336,147 Ind. 56 |
| Parties | Vordermark et al. v. Wilkinson |
| Court | Indiana Supreme Court |
From the Allen Circuit Court.
Reversed.
W. G Colerick, W. E. Colerick and Vesey & Heaton, for appellants.
T. E Ellison and L. M. Ninde & Sons, for appellee.
This was a suit by the appellee, Millie A. Wilkinson, against the appellants, Henry P. Vordermark, Harry E. Vordermark, Lillian Ada Vordermark, Mary Maud Vordermark, The Fort Wayne and New Haven Turnpike Company, the Tri-State Building and Loan Association of Fort Wayne, and John W. Vordermark, in the nature of proceedings supplementary to execution. The object of the suit was to reach personal property, stocks and money of Henry P. Vordermark to satisfy a copy of decree on execution for alimony in favor of the appellee, and it was alleged that the named appellants, severally, held such property, stocks, and money, fraudulently, from the payment of said decree and writ. The appellee, on May 17, 1893, recovered, as against the appellants severally, as to money, stocks, or property held by them respectively. For a fuller statement see Vordermark v. Wilkinson, 142 Ind. 142, 39 N.E. 441. The transcript upon this appeal was filed in this court October 28, 1895, as will be observed, more than two years after the rendition of the decree. The appellee now moves to dismiss the appeal, first, as to Harry E. and Mary Maud Vordermark; second, as to the appellants other than the two just named, and, third, as to all of the appellants. The causes assigned for dismissal are, that the appeal was not taken within the time prescribed, one year, and because upon a former appeal, by the negligence of said Harry E. and Mary Maud Vordermark, the necessary parties were not brought into court, and the appeal was dismissed, as shown by Vordermark v. Wilkinson, supra. On behalf of said Harry E. and Mary Maud Vordermark, it is shown that at the date of the rendition of the decree herein, they were minors, and remained under that disability until less than one year before this appeal was perfected. For the other appellants, objection to the motion is made upon the ground that a reversal as to said Harry E. and Mary Maud Vordermark will necessarily affect the interests of said other appellants, and that the law does not contemplate a reversal affecting the interests of persons not parties, as would be the case if they were not entertained as appellants.
The section of the statute, 645, Burns' R. S. 1894, limiting the time for appeals, provides that: "Where the appellant is under legal disabilities at the time the judgment is rendered, he may have his appeal at any time within one year after the disability is removed." There can be no doubt, therefore, that this appeal, as to said two minors, is in time, and cannot, for that reason, be dismissed. Little, if any, reason appears, however, in support of the proposition that this extension as to those under disabilities may, of itself, operate to extend the time for appeal as to those not under disability and who could have appealed within the year and rendered their appeal effective, notwithstanding the minority of other judgment defendants. Nor does the provision, section 669, Burns' R. S. 1894, that "when any appeal has been dismissed, another appeal may be taken," have the effect to extend to any appellant, even if under disabilities, the right to appeal after the statutory limit of one year, and the removal of disabilities. That provision was intended simply to prevent the foreclosure of one's right of appeal because of the dismissal of a former appeal. It was not designed to extend the time for an appeal. As to whether an appeal shall be dismissed depends upon the non-existence of jurisdiction in the court to which the appeal is taken, and when dismissed for such cause the status of the case is as if no appeal had been taken. The right to an appeal, where an earlier appeal has been dismissed for the want of jurisdiction, would probably have existed in the absence of this statutory provision, if taken in time. See Sanders v. Moore, 52 Ark. 376, 12 S.W. 783; In re Rose, 80 Cal. 166, 22 P. 86; Columbet v. Pacheco, 46 Cal. 650; Johnson, Daniels & Co., v. Polk County, 24 Fla. 28, 3 So. 414; Hook v. Richeson, 106 Ill. 392; McWilliams v. Michel, 43 La. Ann. 984, 10 So. 11; 2 Ency. Pl. and Pr., p. 357.
The right of appeal thus reserved to the minors can not be defeated by the conclusion that other parties to the judgment of the circuit court may have lost their right of appeal if they have complied with the requirements of the statute. No question is made that they have not complied with the statute, but it is said that section 647, Burns' R.S. 1894, gives their co-appellants the right to maintain their appeal herein. That section provides that Another section of the statute, section 646, Burns' R.S. 1894, should be considered in this connection: "The Supreme Court, upon being satisfied that the statute of limitations has barred a part only of the appellants, may strike their names from the record, and proceed to affirm, or reverse, or modify the judgments as to those appellants only who are before the court." Under the plain language of this section it has been held proper to strike out the names of those who might, but did not, appeal in time, and to consider the appeal as to those whose disabilities deferred the time for appeal as to them. McEndree v. McEndree, 12 Ind. 97; Hawkins' v. Hawkins, Admr., 28 Ind. 66.
This case presents an instance where, under section 647, supra, "a part of several co-parties may appeal," and this has been accomplished by serving notice upon the other co-parties. The provision of section 647, supra, that if such notified co-parties do not appear and decline to join they shall...
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