New v. Republic Creosoting Co.

79 Ind. App. 106 | Ind. Ct. App. | 1922

Nichols, C. J.

On March 12, 1922, and after a motion for a new trial had been overruled, judgment on verdict for $1,298.63 was rendered in favor of appellee Republic Creosoting Company, and against appellant and United States Fidelity and Guaranty Company, who were codefendants. From this judgment appellant had attempted to prosecute a vacation appeal, making his co-defendant a party appellee.

It is well established that in a vacation appeal all parties to the judgment, or interested therein or affected by it, or interested in its reversal or affirmance, must be made parties, and if they are coparties, which means parties to the judgment, they must be joined as appellants and notice given to them. Souers v. Walter (1912), 178 Ind. 599, 99 N. E. 1002, and the numerous authorities there cited. In order to confer jurisdiction on this court, it is absolutely required that all parties to the judgment or interested in it must be properly before the court. Souers v. Walter, supra; Brown v. Brown (1907), 168 Ind. 654, 80 N. E. 535; Bottema v. Tracy (1915), 58 Ind. App. 96, 107 N. E. 741; Shaw v. Garrett (1915), 58 Ind. App. 496, 108 N. E. 536. Making United States Fidelity and Guaranty Company a party appellee is the same as not making that company a party, to the appeal at all, and any notice of appeal served on it was wholly without force. Wood v. Clites (1895), 140 Ind. 472, 39 N. E. 160.

Appellant has filed his motion for leave to amend his assignment of error so as to include United States Fidelity and Guaranty Company as a party appellant, but this motion was not filed until November 24, 1922, which was after the time bad elapsed within which an appeal would be taken. This court is without authority to permit the amendment. Brown v. Brown, supra; Pope v. Voigt (1912), 49 Ind. App. 176, 96 N. E. 984; Ewbank’s Manual §226.

Appellant objects to our consideration of appellee’s motion to dismiss the appeal because of a defect in the notice of the .filing of such motion. But this court must take notice of its want of jurisdiction, even without a motion to dismiss for want of jurisdiction. Everett Piano Co. v. Bash (1903), 31 Ind. App. 498, 68 N. E. 329.

The appeal is dismissed.