67 Ind. App. 355 | Ind. Ct. App. | 1917
In this cause appellees have filed their motion to dismiss the appeal on the ground that no final judgment has been rendered, as required by §671 Burns 1914, §632 K. S. 1881, and hence an appeal is unauthorized.
It appears that on November 2, 1914, part of the appellees filed a complaint in the Wells Circuit Court, making appellants, David D. Studabaker, Henry C. Arnold and others defendants. On April 17, 1916,
There are many decisions in this state to the effect that where the issues tendered by a complaint or a cross-complaint are disposed of as to a part of the defendants thereto, but remain undisposed of as to other defendants, an appeal will not lie as to any of such defendants until the rendition of a final judgment as to all the parties and all the issues. American Fidelity Co. v. East Ohio, etc., Co. (1912), (Ind. App.) 101 N. E. 101; id. 53 Ind. App. 335, 101 N. E. 671; Hopp v. Luken (1909), 44 Ind. App. 568, 89 N. E. 916; Daegling v. Strauss, supra; Rife v. Diamond Flint Glass Co., supra.
Appellants contend that their cross-complaint constituted a distinct and separate branch of the case, and that the judgment against them, following the motion to strike out their cross-complaint, was a final judgment within the meaning of §671, supra, and therefore one from which an appeal could be taken. The following authorities are against such contention. Treadway v. Coe (1851), 21 Conn. 282; Ayres v. Carver (1854), 17 How. 591, 15 L. Ed. 179; Ex parte Railroad Co. (1877), 95 U. S. 221, 24 L. Ed. 355.
It is apparent from the record that such judgment did not dispose of all the issues in the case as to all the parties, as required by the authorities first cited,
In view of the fact that it is the policy of the law to prevent multiplicity of suits, and likewise multiplicity of appeals, as far as reasonably possible, with due regard for the rights of litigants, we are convinced that the conclusion we have reached is the correct one, since appellants’ rights would not be jeopardized by abiding the final termination of the proceedings as to all the parties and all the issues, as any error committed in striking out their cross-complaint could be reviewed on an appeal taken after such final judgment.
Motion sustained, and appeal dismissed.
Note. — Reported in 115 N. E. 95. See under (1) 3 O. J. 441; (2) 3 O. J. 492.