20 Ind. App. 12 | Ind. Ct. App. | 1898
Appellant filed his complaint and affidavit in attachment against appellees in the lower court. The Yigo Agricultural Society of Vigo county was made a garnishee defendant, only. Appellee, Samuel A. Brown, answered the complaint and affidavit in attachment by a plea in abatement. A de
The facts stated in each of the four specifications of the motion to dismiss are borne out and established by the record. No valid appeal was ever taken in the cause, the attempted appeal is a fiction and a nullity. It is provided by section 648, Burns’ R. S. 1894/that “In case of the death of any or all the parties to a 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.” This is the section of the statute under which the parties to this action should have proceeded.' It has been held under this section by the appellate courts of this State, that they have no jurisdiction of an appeal prosecuted by or against parties who had died after the rendition of the judgment from which the appeal was taken and before the filing of the appeal in the appellate court. Taylor v. Elliott, 52 Ind. 588; Taylor v. Elliott, 53 Ind. 441; Branham v. Johnson, 62 Ind. 259; Moore v. Stack, 140 Ind. 38. In the case of Moore v. Stack, supra, the Supreme Court of this State say: “In a notice on the appellees of
This court acquired no jurisdiction of Samuel A. Brown, nor of the appeal herein, and the order made by this court on the 31st day of January, 1896, substituting William A. Brown, executor of the will of