Belk v. Fossler

42 Ind. App. 480 | Ind. Ct. App. | 1908

Hadley, J.

Appellees sued appellants on a note and mortgage, asking for a personal judgment against appellant Taeey B. Belk, and for a decree of foreclosure against all of the- defendants. Each of the defendants answered said complaint by a general denial and two set up affirmative matter. Appellants Lovejoy, Belk and Bird each filed a cross-complaint against plaintiffs and their codefendants. Issues were joined and trial had upon said complaint and cross-complaint, and judgment rendered in favor of appellees for a personal judgment against appellant Belk and a decree against all of the other defendants, foreclosing the mortgage and declaring appellees mortgage to be prior to all other mortgages set up in the different cross-complaints. Judgment was also rendered in favor of all of the defendants against their codefendant' Lovejoy, upon her cross-complaint. Said Lovejoy prosecutes this appeal, joining her eodefendants as appellants, and making the plaintiffs in the original suit appellees.

1. Motion has been made to dismiss the appeal for the reason that all of the appellants' except Lovejoy should have been made appellees. This is a vacation appeal, and it is well settled that in vacation appeals a party appealing must make all of his coparties to the judgment coappellants in the appeal, giving proper notice to such appellants of such appeal. This proposition is not disputed, and the'determination of the question at issue hinges upon who are eoparties.

2. In the ease before us, appellees obtained a decree against all of the defendants upon every contested issue. To this deer.ee all of the appellants were eoparties, and from it each of said parties had the right of appeal. The appellants, other than Lovejoy, obtained judgmeat in their favor against appellant Love joy. Prom this only Lovejoy had the right of appeal, and from this somewhat complicated situation it is rather difficult to apply the rule of appeals as before laid down. The true and equitable test would seem to be the rule as laid down in some of the decisions, “that all parties who are entitled to appeal from the judgment must be joined as coappellants in one and the same appeal.” Wood v. Clites (1895), 140 Ind. 472; Ledbetter v. Winchel (1895), 142 Ind. 109; Gregory v. Smith (1894), 139 Ind. 48; Lee v. Mozingo (1896), 143 Ind. 667.

3. It is true that the application of this rule may sometimes present a case like the present one, where appellants may be interested in preserving the judgment instead of reversing it; but in such case such appellants may refuse to join, and may ask that the judgment be affirmed and thus protect -their .interests. On the other hand, the right to an appeal must be given everyone, as there can be but one appeal taken from one judgment, and in this case each of said appellants has the right to appeal from the judgment rendered against him. If he has not been made an appellant his right to appeal is lost.

In judgments like the present, where the same party has won and lost, all of the rights of such party can be protected by making him an appellant, while all of his rights would not be protected by making him an appellee. In this ease the assignment of errors assails the whole judgment; that is, it assigns errors in the court in overruling, demurrers to the original complaint, as well as other errors. In such case all of the parties who were coparties to the judgment with the party taking the appeal should be made appellants and properly served with notice, even though the same judgment was, in some particular, in favor of such coappellants.

Motion to dismiss overruled.