29 Ind. App. 634 | Ind. Ct. App. | 1901
J ames L. Evans and Aaron D. Booth brought their action against Aaron Sohl and a number of other persons, all of whom, except one J. E. Eubanks, are appellants; the complaint showing a cause of action in favor of the plaintiffs against said Aaron Sohl for money had and received by him for the use of the plaintiffs, which he converted to his own use, in the sum of $3,000; the complaint being accompanied by an affidavit in attachment and in garnishment against the other defendants, and by an undertaking in attachment. Afterward James L. Evans, and later Herbert H. Stephenson and John C. Stephenson, became underfiling claimants against the same parties in the same cause. Thereafter such proceedings were had that the court made a special finding of facts, with conclusions of law, and rendered judgment against Aaron Sohl in favor of James L. Evans and Aaron D. Booth for $187.40, in favor of James L. Evans for $5,010, and in favor of Herbert H. Stephenson and John O. Stephenson for $32.70; also sustaining the proceedings of the original plaintiffs and the underfiling plaintiffs in at
Aaron Sohl alone assigns error. In the caption of each of the four separate assignments the plaintiffs and the underfiling plaintiffs are named as the appellees, and Aaron Sohl and the garnishees are named as the appellants, except that instead of the name of the defendant J. E. Eubanks, which is omitted, there are inserted the names of eight persons not parties, who in the assignment of errors are called the only heirs of J. E. Eubanks, deceased. In the transcript on appeal, immediately before the clerk’s final certificate, is a transcript of a petition of Aaron Sohl, and of proceedings thereunder in the court below, purporting to substitute as defendants these eight persons as heirs of J. E. Eubanks, deceased, said to have died after judgment. The appeal was taken in vacation. Proofs of service of notice of the appeal by Aaron Sohl upon the persons so joined as his co-appellants in,the assignment of errors are attached to the transcript. Counsel for appellees direct attention to these peculiarities of the case, and insist that the appeal should be dismissed.
The statute authorizes an appeal by a part of several coparties, requiring, however, if it be a vacation appeal,
If the judgment of the appellate tribunal will materially affect the rights of persons who were parties in the lower court, they should be made parties on appeal and should be notified; and whenever the presence of parties is essential to a complete adjudication, the question is jurisdictional,
The judgment against the garnishee was a personal judgment for money only, and had no relation to the title to real estate. See Ewbank7s Manual, §§145, 166. If this garnishee had died before judgment, while the cause was still pending in the court below, the action as against him could not have been revived agjainst his heirs. After his death the judgment would be a claim to be discharged by his personal representative. The proceeding set forth in the transcript, above noticed, purporting to substitute the heirs as defendants, could not avail against the requirement of the statute relating to the death of a party to a judgment before an appeal is taken.
Appeal dismissed.