Berkey v. Tipton Light, Heat & Power Co.

42 Ind. App. 301 | Ind. Ct. App. | 1908

Lead Opinion

Hadley, J.

1. This was a suit by appellants against appellees for an injunction. We are confronted by a jurisdictional question presented in a motion to dismiss. The record discloses that the original complaint in two paragraphs was filed by appellants against the Tipton Light, Heat & Power Company and Philip McArdle; that upon affidavit the venue was changed from the Tipton Circuit Court to the Howard Superior Court. Thereafter appellants filed ' an amended first para^ graph of complaint, naming the Tipton Light, Heat & Power Company and Peter McArdle as defendants, Philip McArdle not being named therein or made a party thereto. Thereafter the record shows that the appellee company and Peter McArdle each filed a separate demurrer to the amended first paragraph of complaint, each of said demurrers, being sustained. Appellants withdrew the second paragraph of complaint, refused to plead further, and judgment was rendered on said amended first paragraph, “that plaintiffs take nothing and that the defendants recover of plaintiffs their costs in this suit expended. ’ ’

In the assignment of errors Philip McArdle is named as appellee, and Peter McArdle is not named therein. The first assignment of error is that the court erred in sustaining the separate demurrer of appellee Philip McArdle to appellants’ amended first paragraph of complaint. The record does not show that Philip McArdle filed any such demurrer. It is therefore shown that the cause of action was instituted against the Tipton Light, Heat & Power Company and Philip McArdle; that afterwards, by amended complaint, Peter McArdle was brought into the suit, and upon the ruling upon this amended complaint a joint judgment was rendered in favor of said company and Peter McArdle. This is the only judgment rendered in the cause, and is the judgment appealed from. It is therefore sought in this appeal to reverse a judgment in which Peter McArdle has an interest without making him a party to the appeal. This, under our well-settled practice, cannot be done, the rule being that the assignment of errors must be against the persons in whose favor the alleged erroneous ruling was made. Braden v. Leibengutk (1890), 126 Ind. 336; Waldrip v. McConnell (1908), ante, 54; Moon v. Cline (1895), 11 Ind. App. 460.

It is manifest that this court has no jurisdiction to reverse a judgment in favor of Peter McArdle without his having been made a party to the appeal.

Appeal dismissed.

Roby, J., absent.

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Rehearing

On Petition for Rehearing.

Hadley, J.

2. Appellants, upon a petition for rehearing, insist that since Philip McArdle was answering to the name of Peter McArdle, this court should not dismiss’ the appeal, since ’it is jurisdiction of the person and not the name that should control. There might be something in this contention if there was anything in the record to show that Philip McArdle was answering for Peter McArdle, or that they are different names .for the same person. The record does not disclose any such fact. The names Philip McArdle and Peter McArdle are not idem sonans, and cannot be presumed to represent one and the same person. If there was anything in the record to show that Peter McArdle was within the jurisdiction of this court a different question might be presented. But there is not. The fact that this is a term-time appeal does not alter the question.

3. While it may be true that the notice of appeal in term is a notice to all parties to the judgment that the appeal will be taken, this notice alone gives this court no jurisdiction, unless followed by the filing of a bond in the lower court, and the filing in this court of a transcript and an assignment of errors, naming all parties to the judgment.

In addition to the authorities cited in the original opinion we add: Garside v. Wolf (1893), 135 Ind. 42; Gregory v. Smith (1894), 139 Ind. 48; Hunderlock v. Dundee Mortgage, etc., Co. (1892), 88 Ind. 139.

.Petition for rehearing overruled.