39 Ind. 591 | Ind. | 1872
Lead Opinion
This was an action by the appellee against the appellant’s intestate, to foreclose a mortgage on certain real estate, executed by the deceased, in this form: “Joseph Henry Luers, Bp. Ft. Wayne,” to the appellee’s intestate, Bernard Joseph Force.
' The defendant answered, first, the general denial; second,
The statute provides, that in case of the death of any or all of the parties to the judgment before an appeal is taken, an appeal may be taken by, and notice of an appeal served upon, the persons in whose favor and against whom the action might have been revived, if death had occurred before judgment. 2 G. & H. 271, sec. 552.
With reference to the revival of actions, the statute provides that no action shall abate by the death, marriage, or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of death, marriage, or other disability of a party, the court, on motion, or supplemental complaint, at any time within one year, or on supplemental complaint afterward, may allow the action to be continued by or against his representative or successor in interest. In case of any other transfer of interest, the action shall be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action. 2 G. & H. 51, sec. 21.
By the first of these sections of the statute, we find that an appeal may be taken by, and notice given to, the persons in whose favor and against whom the action might have been-
Having arrived at the conclusion, then, that both the personal representative and the heir are necessary parties to the appeal, it follows that the appeal in this case cannot be sustained in the name of the administrator alone. But it may be asked what shall be done if the heir will not unite with the personal representative in the appeal, or vice versa? We answer, without intending to decide the question, for it does not appear as yet in this case that the heir will not join, that, perhaps, in spirit, the provision made by sec. 551, 2 G. & H. 270, will apply. The personal representative and the heir might, in that case, be so far regarded as co-parties, that the one might appeal by serving the required notice on the other in accordance with that section.
The appeal is dismissed, with costs.
Rehearing
On Petition for a Rehearing.
A petition for a rehearing in this case presents as reasons therefor the following:
“ First. That it is unnecessary to make the personal representatives of Luers parties to the cause, as Luers was only a trustee, and that a successor to his trust has been appointed.
“ Second. That Luers was simply a trustee of the church, an unincorporated society, and as bishop held the real estate upon which the mortgage was given, and upon which the judgment was obtained below in trust for said congregation, and that as such trustee his personal representative had no interest directly or indirectly in the determination of the suit.”
Counsel seem to have misapprehended the decision of the court. It was not objected, as counsel seem to suppose, that the personal representative of the defendant 'below was • not a party to the appeal. On the contrary, it is stated in the • opinion that the appeal is taken by the administrator. We
The petition is overruled.