52 Ind. App. 345 | Ind. Ct. App. | 1913
This was a proceeding supplementary to execution brought by appellee against appellant, Antonio Mascari, and Anna Mascari, his wife.
Appellee filed his affidavit or complaint in two paragraphs, alleging in each facts sufficient to authorize the issuance of an order requiring the defendants therein to appear. The proceeding was summary, and no pleadings affecting the allegations of the affidavit were filed.
The court made the following finding: “ Come the parties and the court having heretofore taken this cause under advisement and being duly advised finds for the defendants and that plaintiff take nothing by this action except his costs expended herein. It is therefore considered, and adjudged by the court that defendant Antony Mascari pay the costs of this action taxed at $-. ” Appellant Antonio Mascari filed his separate motion, praying for a modification of the judgment by retaxing the costs. This motion was by the court overruled, which ruling is assigned as error in this court.
Appellee presents a motion to dismiss the appeal on the following grounds: (1) The motion to modify the judgment was a part of the main action from which no appeal lies. (2) In vacation appeals all parties to the judgment must be parties to the appeal, or the appeal will be dismissed for want of jurisdiction. Both Antonio Mascari and Anna Mascari, his wife, were parties to the record in the court below. Appellee’s attorney, in his motion to dismiss, and in his argument, asserts that this is a vacation appeal.
Anna Mascari, who was a party to the judgment in the court below, in so far as the record in this ease discloses, is not a party to the appeal, and in so far as the record discloses was not served with the notice required.
The appeal is dismissed for want of jurisdiction.
Note.—Reported in 100 N. E. 781. See, also, under (2) 2 Cyc. 864; 3 Cyc. 185; (3) 2 Cyc. 758; (4) 2 Cyc. 750. As to who may appeal as an interested or injured party, see 119 Am. St. 740. For a discussion of the parties entitled to a notice of appeal, see 13 Ann. Cas. 181; 21 Ann. Cas. 1277.