151 Ind. 534 | Ind. | 1898
This action was commenced by the appellee, against her husband, Jacob Frankel, and the Michigan Mutual Life Insurance Company, in the superior court of Marion county. The purpose of the suit was to set aside a deed executed by the plaintifi and her said husband to his codefendant, whereby
An examination of the record reveals that on July 13, 1896, the same being the last judicial day of the April term of the Hamilton Circuit Court, that court made its special finding in the cause, and rendered the judgment thereon in favor of the plaintiff against the defendants, as heretofore stated. On the first day of the next term of that court, the same being Sep-' tember 7, 1896, appellant filed its motion for a new trial, which the court on that day overruled; and appellant then applied for a new trial under the statute as a matter of right. On the 29th day of September, 1896, which was the twentieth judicial day of the September term, this application was denied, and sixty days were granted to file a bill of exceptions; and the record discloses the following entry: “And the defendant prays an appeal to the Supreme Court, which is granted, and the bond fixed at $300.00, to be filed herein, properly conditioned with the American Surety Company as surety, and said bond is to be approved upon such condition.” The record does not show that any appeal bond was filed in term, or that any time was fixed by the court for the filing thereof. The transcript was not filed in this court until February 6, 1897, more than four months after the application for a new trial as a matter of right was denied,
The statute provides the steps which must be taken in order to effect a term-time appeal, and thereby relieve the appellant from giving the notice required by law in vacation appeals. The penalty of the appeal bond must be fixed and the surety named and approved by the court during the term at which the final judgment is rendered, and the bond, conditioned according to law, must be filed within the time directed by the court. Where, in the opinion of the court, the occasion or circumstances render it necessary, the time in which the court directs the bond to be filed may extend beyond the close of the term. In all term-time appeals, however, it is essential and requisite to render the same effective as such, that a bond be filed within the time designated by the court, and the transcript must be filed in the office of the Clerk of the Supreme Court within sixty days after filing the bond. Where no bond is filed, the appeal must be considered a vacation appeal, and notice must be given, as provided by the statute in such appeals. Holloran v. Midland Railroad Co., 129 Ind. 274; McKinney v. Hartman, 143 Ind. 224; Elliott’s App. Proc., sections 247, 248. In the case at bar, as
In response to appellant’s second ground of insistence, it is sufficient to say, that the appellee in her complaint demanded and secured a judgment jointly against both of the defendants, and the special finding discloses that the deed for the land to appellant was obtained from her through the wrong of both defendants; and it further appears from said finding that the defendant, Jacob Frankel, was benefited by the conveyance in dispute, for the reason that it re-suited in the satisfaction to the amount of $3,000 of an indebtedness of his, held against him by appellant. This deed of conveyance, the judgment below, as heretofore stated, set aside and quieted plaintiff’s title against the defendants to the real estate which the deed purported to convey. Certainly, under the facts, Jacob Frankel is affected by the judgment which appellant seeks by this appeal to overthrow, and he would necessarily be affected in his substantial rights by the judgment of this court. The fact that he was defaulted in the lower court does not affect the question, for he was still entitled to his right of appeal, regardless of his default, and on such appeal he could at least challenge the sufficiency of the complaint and the jurisdiction of the court. Lee v. Mozingo, 143 Ind. 667, and cases there cited. In order, therefore, to give this tribunal complete jurisdiction over the cause, it is clear that appellant ought to have
The fact that appellee did not move to dismiss this appeal until after the submission of the cause in this court and the filing of her brief upon the merits of the action cannot serve as a waiver nor a bar to the dismissal of the appeal. We aré aware that some of the early decisions of this court, for instance, Field v. Burton, 71 Ind. 380, and Burk v. Simonson, 104 Ind. 173, 54 Am. Rep. 304, and others, support the contention of appellant in this respect; but these decisions, on this point, have been impliedly overruled by the later cases, which hold that the question is one relating to jurisdiction, and is therefore a matter which neither the parties to the appeal nor the court itself can waive or disregard, and the court may, and properly should, dismiss such appeal on its own motion for want of jurisdiction. See Hutts v. Martin, 131 Ind. 1; Vordermark v. Wilkinson, 142 Ind. 142; Lee v. Mozingo, supra; Lowe v. Turpie, 147 Ind. 652; Abshire v. Williamson, 149 Ind. 248, and authorities there cited.
In the case last cited we said: “It is a fundamental rule in jurisprudence that before any court will proceed to adjudicate upon the subject-matter, it must first acquire jurisdiction over all the parties whose rights or interests will be necessarily affected by its judgment. Not having the power, under the facts, to decide this cause as an entirety, unless all of the necessary parties are brought into court, as required by law, therefore we will not violate the well settled rule which forbids the decision of a case in fragments, by asserting authority to make a partial decision in this case, which must be regarded as an entire and indivisible cause, but may, and properly should dismiss the appeal on our own motion.” The motion must be sustained, and the appeal is therefore dismissed.