59 Ind. App. 672 | Ind. Ct. App. | 1915
The appellees, other than Simon Kalish, move the court to dismiss this appeal, and in substance allege: (1) that the court has acquired no jurisdiction of the appeal to decide the merits of the case because “there is no final judgment against the defendants to the cross-complaint, Sarah Strauss, Mark Hershberg, Flora Strauss, Morris Alexander, Belle Strauss, Simon Kalish,-Kalish, his wife * * * May Kalish, wife of Otto Kalish and Marie Kalish; (2) because the above named persons are parties to the judgment adverse to the appellants, being defendants to appellants’ cross-complaint and as such being interested in having the judgment in favor of appellees and against appellants stand. They are necessary parties to the assignment of errors but are not'named as parties thereto.”
The case was tried on an amended complaint to quiet title, and for possession of real estate, filed by Maurice T. Strauss, Bertha Hershberg, Minnie Blum, Abraham Strauss, Bertha Alexander, Isaac Strauss, Sidney Blum, Jessie Blum, Amanda Yehon, Morris Kalish, Sigmund Kalish, David C. Blum, Otto Kalish and Joseph Regenstein, against Frank Zawadski, Mrs. Frank Zawadski, whose given name is unknown, Fernando “W. Daegling, Laura Daegling, his wife
The case was tried by the court which, on due request, made a special finding of facts and stated its conclusions of law thereon. The court found that each of the plaintiffs was the owner of a certain undivided fractional part of said real estate which is definitely set out in the finding, and that Simon Kalish, defendant to the cross-complaint, was the owner of || part thereof, which fractional parts together comprised all of the real estate in controversy. On the facts so found the court stated its conclusions of law -in substance that (1) the plaintiffs and the defendant, Simon Kalish, are the owners of the real estate described in the complaint, as tenants in common, setting out each fractional interest; (2) “That the plaintiffs are entitled to a decree quieting their title to said real estate against the defendants Fernando W. Daegling and Laura W. Daegling, his wife, Frank Zawadski, Mrs. Frank Zawadski his wife, * * * and Frank Moynan, as trustee * * *. That the plaintiffs are entitled to the possession of the real estate as against the defendants Daegling and Daegling and Zawadski and Zawadski”; (3) “That the defendants Daegling and Daegling should take nothing by their cross-complaint”; (4) “That the plaintiffs take nothing by their complaint
The appellants have named as appellees, Maurice T. Strauss, Bertha Hershberg, Minnie Blum, Abraham Strauss, Bertha Alexander, Isaac Strauss, David C. Blum, Sidney Blum, Jesse Blum, Joseph Eegenstein, Amanda Yehon, Morris Kalish, Otto Kalish, Sigmund Kalish, and Simon Kalish, but have not named therein the parties set out in appellees’ motion to dismiss, except Simon Kalish.
The appellants are seeking relief from a judgment which only adjudicates a portion of the title to the real estate in controversy and which is not binding against them as to the interest of Simon Kalish. Had the judgment been rendered against appellants on the cross-complaint in conformity with the finding of facts and conclusions of law, it would have covered all the issues as to all the parties, including Simon Kalish, but as it is, this issue is not adjudicated.
In Keller v. Jordan (1897), 147 Ind. 113, 46 N. E. 343, our Supreme Court quoted with approval the language of Elliott, App. Proc. §91 where it is said: “The fundamental principle is that the ease, in all its parts, must be disposed of in so far as it is before the court, under the issues, otherwise it will not be regarded-as one in which an appeal will lie.”
The law does not favor the decision of legal controversies by piecemeal, and our lawmakers in enacting the statute wisely invoked the same principle. Our conclusion upon this subject makes it unnecessary for us to pass upon the other grounds for dismissal alleged in appellee’s motion.
The interest of Simon Kalish in the real estate was in issue and was passed upon by the court up to the point of the rendition of the judgment where it was entirely omitted. Whether he be regarded as a party to the amended complaint, or only a defendant to the cross-complaint, as shown by the record, can not change the fact that the judgment from which the appeal was taken is not complete and final as to all the parties and all the issues of the case tried by the court. While it is always to be regretted when the court is compelled to dispose of an appeal on technical grounds, yet, in this instance, the hardship is minimized as there appears no good reason why there may not yet be
"We therefore conclude that the judgment from which the appeal was taken is not final and appealable within the meaning of our statute, and that the motion to dismiss should be sustained. Appeal dismissed.
Note. — Reported in 109 N. E. 920. See, also, under (1) 3 C. J. 446, 462 ; 2 Cyc. 586, 588; (2) 3 C. J. 411; 2 Cyc. 587, 588.