154 Ind. 54 | Ind. | 1900
Appellee, Yolney T. Reid, as administrator with the will annexed of the estate of James F. Burcham, deceased, filed his petition in the court below to set off to the widow her undivided one-third of the real estate of said testator, and to sell the part not'set off to her to pay the debts of said estate, making defendants thereto the widow and children of said deceased. John II. Albert, and William A. Cusick held a mortgage on said real estate, and the Capital National Bank of Salem and John F. Burcham each held a mortgage on said real estate. The wife of said deceased did not join in the execution of either of
Appellees have filed a motion to dismiss the appeal on the ground that appellants have not made all the parties whose interests are adverse to and in conflict with theirs appellees in-this court. It appears from the record that the mortgage executed by the decedent to John P. Burcham was to indemnify and secure him against loss as the surety of said deceased on notes held by the following parties: Salem Bank, John R. Bare, Martha Bressie, James Wilson, Raymond Duff, and J ames II. Spaulding. These persons were by leave of court made defendants to the cross-complaints filed by appellants, and duly brought into court by the service of summons. The final judgment expressly ordered that the administrator pay, not to John F. Burcham, the surety, the amount for which he was surety, but to the Salem Bank, John Bare, Mrs. Bressie, James Wilson, Raymond Duff, and James IT. Spaulding, the amount of the claim held by each respectively, upon which said John F. Burcham was surety, and, if any of said claims be paid'by said Burcham as surety, the administrator pay the amount thereof to him. It is evident that the holders of said notes above named, being parties to the action in the court below, were opposite parties to appellants, the same as Belle Burcham and John F. Burcham, and should have been made co-appellees with them, under the rule declared in McClure v. Shelburn Coal Co., 147 Ind. 119, and Garside v. Wolf, 135 Ind. 42. Upon the authority of the cases mentioned, the motion to dismiss the appeal is sustained.
Moreover, if all opposite parties to appellants had been made appellees in this court, the judgment would be af