Voss v. Balz

• Decision Date: 03 February 1932
• Docket Number: 25,992
• Citation: 179 N.E. 552,203 Ind. 221
• Parties: Voss v. Balz et al
• Court: Indiana Supreme Court

179 N.E. 552

203 Ind. 221

Voss v. Balz et al

No. 25,992

Supreme Court of Indiana

February 3, 1932

1. APPEALS---Assignment of Errors---Amendment of---After Expiration of Time for Appeal---Not Authorized.---An appellate tribunal has no power, after the expiration of time for appeal, to authorize an amendment of an assignment of errors so as to bring in additional appellees, as the court would then have no jurisdiction over such persons so as to compel them to become parties to the appeal. p. 222.

2. APPEAL---Assignment of Errors---Application for Amendment Thereof---Made after Expiration of Time for Appeal---Must be Overruled and Appeal Dismissed.---Since an appellate tribunal is without power to disturb the judgment of the trial court unless all parties in whose favor the judgment was rendered are before the court, an application to amend the assignment of errors so as to bring in some of such parties, made after the expiration of the time for appeal, must be overruled and the appeal dismissed. p. 224.

From Vanderburgh Superior Court; Edwin C. Henning, Judge.

Action between Albert C. Voss and Harry W. Balz and others. From the judgment rendered, the former appealed. After expiration of the time for taking an appeal, appellant filed a motion to amend the assignment of errors by inserting therein the names of certain persons as appellees in whose favor the judgment was rendered, and the appellees moved to dismiss the appeal.

Motion to amend overruled and appeal dismissed.

James T. Walker, Henry B. Walker and Henry Kister, for appellant.

Val Nolan, E. L. Craig, Daniel H. Ortmeyer, Arthur C. Stone Loren Kiely, Funkhouser & Funkhouser, Armstrong & Lanphar Ollie C. Reeves, Ernest J. Crenshaw, Walton M. Wheeler Spencer & Ensle, Emra H. Ireland, James T. Cutler, Fred P Bamberger, T. Morton McDonald, Edward C. Craig and Vernon W. Foster, for appellees.

OPINION

PER CURIAM.

The appellees have filed their motion to dismiss this appeal for want of jurisdiction, the contention of the appellees being that "where the assignment of errors has omitted naming certain necessary appellees, as was done in this cause, the Supreme Court does not acquire jurisdiction over the appeal, and may not, after the expiration of the time for an appeal, permit additional appellees to be named, and such is the situation in this case."

Appellant has filed his motion to amend the assignment of errors by inserting the names of certain persons who are necessary parties to this appeal. Appellant does not question that these parties are necessary parties; nor does he question that the statutory period for taking this appeal had expired prior to the date that he filed his motion to amend the assignment of errors by adding the names of these necessary parties. As respects the omitted persons, no appeal was taken within the time allowed by law, and this court has no power to compel them to become parties. This would be a direct nullification of the statute which fixes the time within which an appeal must be taken. This point was decided in the case of Keiser v. Howard (1927), 199 Ind. 137, 155 N.E. 707. In that case, the appellant was given permission "to amend the assignment of errors by setting out the names of all the appellees," but consideration of the motion to dismiss the appeal was postponed until final hearing. After final hearing, the appeal was dismissed with the following statement:

"The fact that the appellant was given permission to amend the assignment of errors after the time for filing the transcript had expired did not defeat the right of appellee Joseph F. Howard, to have the appeal dismissed; and it was not intended that the granting of appellant's petition to amend should decide the question of dismissal of the appeal, as it was then ordered that the consideration of the petition to dismiss should be postponed.

"As twenty of the petitioners for the drain who were parties to the proceeding and affected by the judgment were not named as appellees in the first assignment of errors, and as same was not amended within the time for filing it, the motion to

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