20 Ind. App. 455 | Ind. Ct. App. | 1898
John W. Emerson, administrator of the estate of Wilson M. Tyler, deceased, filed in the office of the clerk of the Knox Circuit Court his final report as such administrator.
The court stated as conclusions of law; (1) That the final report of the administrator should be approved. (2) That appellee was entitled to have and recover the distributive shares of appellant, of the Fourth National Bank of Cincinnati, O., of the State National Bank of Terre Haute, and of Franklin dark, paid to her. (3) That the total amount for distribution in the hands of the administrator was $20,486.22, which should be distributed as follows: To Margaret E. Tyler, $20,398.42; Joseph Peibles, $54.37; J. Shilletto & Co., $30.43; C. H. Debolt, $3.00. The court rendered judgment approving said final report, and directed distribution in accordance with the finding. The only parties to this appeal are Paxton, appellant, and Margaret E. Tyler, appellee. No attempt has been made to make any other person a party.
Appellee moves to dismiss the appeal upon a number of grounds. We deem it necessary to refer only to the first and second. The first ground of the motion is that the administrator of the estate is not a party to the appeal; second, because the State National Bank of Terre Haute, the Fourth National
Judge Elliott, in his Appellate Procedure in section 138, says: “It is essential that all persons whose interests may be substantially affected by the judgment on appeal should be made parties to the appeal in some appropriate mode. * * * Only one appeal can be prosecuted from a joint judgment by those who are parties to it, and yet all must be before the court to which the case is carried. But, while all the parties to a joint judgment must be brought in on an appeal, they need not be brought in as consenting parties but they may be notified, and if notified, they are before the court, whether they expressly join or refuse to join in the appeal.” In section 140 of the same work it is said: “While it is safe to affirm that all persons included in a joint judgment must be parties to the appeal, it is not safe to say that only such persons must be parties to the appeal, for there may be cases where the decree or judgment is not strictly a joint one in which all the parties are so affected by it as to be necessary parties to the case on appeal. * * * So where a fund is in court for distribution the claimants of the fund may, in some instances, be affected by a judgment awarding part of it to some of their number, and if so, all affected should be parties, for their rights cannot be justly adjudicated without their presence as parties.” Hunderlock v. Dundee Mortgage and Trust Co., 88 Ind. 139, was a suit upon a note, and to foreclose a mortgage upon real estate given to secure the same. The mort
In Beaty v. Voris, 138 Ind. 265, an administrator petitioned for an order to sell land to satisfy an allowed claim secured by a lien on the land, and other creditors being made parties thereto upon their own motion, filed a cross-complaint to which the claimant was made a party. Issues were joined on the cross-
It is clear, under the authorities cited, that the administrator is a necessary party to the appeal. It is not therefore necessary to pass upon the other grounds of the motion. Appeal dismissed.