193 Ind. 450 | Ind. | 1923
On February 27, 1922, the Fidelity Trust Company, as trustee of appellant Dora E. Rooker, applied to the court below and obtained an order approving a lease of certain tillable land — part of the trust estate — to one Thomas West for the crop year of 1922.
On March 4, 1922, appellants appeared specially and moved the court to set aside its order of approval for the reason that the order was made and entered without any notice whatever to either of these appellants, and without their knowledge, and therefore void. Further
The object of the errors here assigned is to challenge the rulings of the court: (1) in granting the trustee’s petition and approving the lease to Thomas West; (2) in overruling appellants’ motion to set aside and vacate its order and judgment of February 27; and, (3) in overruling appellants’ demurrer to appellee’s application for a writ of assistance.
Our consideration of the questions sought to be presented by this appeal is met by appellee’s motion to dismiss this appeal on the ground that it is not an appeal taken from a final judgment or from an appealable interlocutory order, or perfected within the time required by our code for taking appeals from interlocutory orders, and because the lessee is not a party, although his interests are adverse to appellants.
At this point, it may be well to refer briefly to the litigation between these parties, and out of which has grown this controversy. This court judicially knows that on October 11, 1909, these appellants entered into a certain written contract with appellee Fidelity Trust
A certified copy of the latter opinion and judgment was filed with the clerk of the Hamilton Circuit Court October 26, 1921. On November 16, 1921, appellee
If we were permitted to consider the merits of this
In considering the motion to dismiss, we are advised by the record before us that an exception was taken only to the action of the court in overruling appellants’ motion to set aside and vacate its order of February 27. Hence, the error assigned on that ruling is the only one having the essential prerequisite to present any question on appeal. The statute, §656 Burns 1914, §626 R. S. 1881, requires that the party objecting to any decision of the court must except at the time the decision is made, and unless this is done and the record so shows, error cannot be successfully predicated thereon. Lewis v. Nielson (1911), 176 Ind. 414; Chicago, etc., R. Co. v. McBeth (1897), 149 Ind. 78; Banner Cigar Co. v. Kamm, etc., Co. (1896), 145 Ind. 266; Johnson v. Eberhart, Sheriff (1895), 140 Ind. 210; Aubain v. United Brotherhood, etc. (1917), 63 Ind. App. 636. However, we are not unmindful of an exception to this general rule which might have been allowed in this case. It has been held that in an ex parte proceeding, where it affirmatively appears that the ruling complained of was made in the absence of the complaining party, he would be entitled to have his objections and exceptions noted if taken at his earliest legal opportunity. Lewis v. Nielson, supra; Wabash R. Co. v. Dykeman (1892), 133 Ind. 56, 64. But, in this instance, there was no attempt to come within the exception.
Returning to the question of appellants’ right to prosecute this appeal under §671 Burns 1914, supra, we are impressed with the view that such right does not exist. The judgment of the Hamilton Circuit Court, affirmed by this court on the second appeal, right or wrong, determined the rights of the parties and prescribed the duties of the trustee in and concerning the trust estate. While that judgment was final, yet the redocketing of the cause in the trial court was proper procedure. That court has jurisdiction of the parties and of the subject-matter, and to it the trustee must look for orders and directions in the due administration of the trust estate, and the cause remains on the docket for that purpose alone until final disposition. The order made February 27 was not a
Appellee’s motion must be sustained. Appeal dismissed.
Ewbank, J., not participating.
Townsend, J., absent.