Wilson v. Kings' Estate

• Decision Date: 11 January 1961
• Docket Number: No. 19257,19257
• Citation: 131 Ind.App. 412,171 N.E.2d 485
• Parties: Leola Wade WILSON, Appellant, v. ESTATE OF W. L. KINGS, Appellee.
• Court: Indiana Appellate Court

Page 485

171 N.E.2d 485

131 Ind.App. 412

Leola Wade WILSON, Appellant, v. ESTATE OF W. L. KINGS, Appellee.

No. 19257.

Appellate Court of Indiana, In Banc.

Jan. 11, 1961.

Sidney E. McClellan, Muncie, for appellant.

Marshall E. Hanley, Muncie, Jack C. Brown, Indianapolis, James C. Courtney, Indianapolis, for appellee.

MYERS, Judge.

Appellant has filed a petition for rehearing in this case, alleging in substance that we have interpreted Supreme Court Rule 2-6 erroneously; that since a claim may be filed in an estate without naming the personal representative, who becomes a party defendant by operation of law, the same rule should apply on appeal; that an estate is a legal entity, a person in contemplation of law, and failure to name the personal representative thereof in the assignment of errors on appeal may be corrected pursuant to the provisions of Rule 2-6; that appellee has waived any question of jurisdiction by appearing in this appeal and filing its brief on the merits.

The material part of Rule 2-6 as it applies in this case reads as follows:

'In the title to the assignment of errors all parties to the judgment seeking relief by the appeal shall be named as appellants, and all parties to the judgment whose interests are adverse to the interests of the appellants shall be named as appellees. Assignments of cross-errors shall use the same title but immediately thereafter shall designate the parties seeking relief and those against whom relief is sought by assignment of cross-errors. Failure properly to name parties will not be treated as jurisdictional. Amendments may be permitted upon such terms as the court shall direct.'

This rule pertains to the assignment of errors in an appeal specifically. It has no relationship to prior proceedings in the trial court, so the fact that a personal representative may be brought in as a party by operation of law without being named when a claim is filed against an estate in the lower court, is of no consequence herein.

It has been said many times that the assignment of errors is in the nature of a complaint by the appellant in the appellate tribunal. Flanagan, Wiltrout and Hamilton's Indiana Trial and Appellate Practice, § 2382, page 152, and authorities cited therein; Bolden v. State, 1956, 235 Ind. 695, 131 N.E.2d 301. Without a proper assignment of errors this court acquires no jurisdiction over the subject-matter of the appeal. Baugher et al. v. Hall, Receiver, etc., 1958, 238 Ind. 170, 147 N.E.2d 591. Where there is a failure to properly name parties, either as appellants or appellees, the assignment of errors is defective and ineffectual. Such equires a dismissal of the appeal. Baugher et al. v. Hall, Receiver, etc., supra; Cook v. Albrecht et al., 1957, 127 Ind.App. 457, 143 N.E.2d 121. The fact that the appellee herein appeared and filed a brief on the merits does not waive the question of jurisdiction, it being the duty of this court to decide the matter in spite of the fact that appellee did not raise it by motion to dismiss. Jenkins v. Steele, 1913, 55 Ind.App. 11, 102 N.E. 139, 103 N.E. 365; Otolski v. Nowicki's Estate, Ind.App.1959, 158 N.E.2d 296.

Appellant argues that an estate of a deceased person is a legal entity, and that failure to name the personal representative as a party appellant comes within the provisions of Rule 2-6, which says:

'Failure properly to name parties will not be treated as jurisdictional.'

This sentence has been interpreted by the Supreme Court in the Baugher case, supra, wherein the following statement was made (at page 176 of 238 Ind., at page 594 of 147 N.E.2d):

'Amended Rule 2-6 still requires an assignment of errors. As we construe the rule, it does not dispense with the necessity of naming in the assignment of errors 'all parties to the judgment seeking relief by the appeal' and 'all parties to the judgment whose interests are adverse to the interests of the appellants.' Rule 2-6 does not say 'Failure to name parties will not be treated as jurisdictional.' The word 'properly' limits the application and effect of the new jurisdictional rule adopted. The ordinary meaning of 'properly' is 'Suitably; fitly; strictly; rightly; correctly'; Webster's New Int. Dict. (2d Ed.) Unabridged. It may be that Rule 2-6 should be further amended, but as it stands it is now the law of this jurisdiction on appeals, and we as well as the parties to the judgment in the trial court are bound by it.'

Appellant presents us with two cases which she claims substantiate her position that an estate is a person, and thus a party to the appeal, although not properly named. In the case of Billings v. State, 1886, 107 Ind. 54, 55, 6 N.E. 914, 7 N.E. 763, a criminal information charged the appellant with forging the name of a deceased person to a promissory note for the purpose of defrauding the estate of the deceased. The objection urged against the information was that it did not aver the forgery was committed with the intent to defraud 'any person,' reasoning that the law does not regard the estate of a decedent as a person. The court stated:

'The estate of a decedent is a person in...