No. 17,106 | Ind. | Jan 9, 1895
The appellee Millie A. Wilkinson commenced an action in the circuit court against Henry P. Yordermark, • Harry E. Yordermark, Lillian Ada Yordermark, Mary Maud Yordermark, the Port Wayne and New Haven Turnpike Co., the Tri-State Building and Loan Association of Port Wayne, Indiana, and John W. Yordermark, the above named appellant. The complaint alleged in substance that on March 27, 1893, the plaintiff had recovered a judgment in the Wells Circuit Court on a cross-complaint by her filed against Henry P. Yordermark for $1,800 alimony. That on March 28, 1893, an execution issued on said judgment to the sheriff of Allen county, where plaintiff and defendants all reside, which execution was levied upon certain personal property of said Henry P., appraised at $251.35. That on a demand by said sheriff upon him for money or property sufficient to satisfy said writ, said Henry P. refused to pay the same or turn out any property to satisfy the same or any part thereof. That he has property and money that should be applied to the satisfaction of said judgment, which he fraudulently conceals and withholds from the payment thereof.
That during the pendency of said action the said Henry P. and John W. Yordermark were the owners of a shoe store in said city of Port Wayne as partners, under the firm name of E. Yordermark & Sons. That the stock of goods of said firm was worth $2,000, over and above the indebtedness of the firm. That said Henry has sold, or agreed to sell, his interest in said store to said John W. Yordermark, for the purpose of defrauding and cheating the plaintiff out of the collection of her said judgment, which purpose was well known
That said Henry P. had 18f- shares of the stock of the Fort Wayne and New Haven Turnpike Company, of the face value of $50 per share, which he has refused to turn out on said execution. That John W. Vordermark is the president of said Turnpike Company, and, although requested, refused to turn out said stock, so that'the same may be levied on to satisfy said execution. That Harry E. Vordermark, Lillian Ada Vordermark and Mary Maud Vordermark have personal property in their possession belonging to Henry P., their father, who claims that such property belongs to them, they being his infant children. That if any transfer thereof has been made to them in- any way, the same is fraudulent, having been fraudulently made by said Henry P., and received by them for the purpose and intention of cheating, defrauding and delaying the plaintiff in the collection of her judgment.
Prayer for .an order that each and all of said parties deliver said property, fraudulently delivered or conveyed to them, and that said Henry P. Vordermark be required to turn over to said sheriff all money and property in his possession. This complaint was verified by affidavit of the plaintiff.
A trial of such issues by the court without a jury resulted in a finding for the plaintiff that all the material allegations in her complaint are true, and that Harry E. Yordermark has in his hands $290, and Lillian Ada Yordermark has $85 in her hands from money paid by said John W. Yordermark to said Henry P. Yordermark, and by him to them, which was fraudulently done and paid by said parties to avoid the payment of said execution. And it was therefore ordered that Plarry E. Yordermark and Lillian Ada Yordermark pay said money to the clerk of the trial court to abide the further order of said court.
And it was further ordered, adjudged and decreed by the court that said Tri-State Building and Loan Association do forthwith turn out to the sheriff the certificates of said stock for the purpose of sale thereof, etc., and that the officers of the Port Wayne and New Haven Turnpike Company turn out and over to the sheriff of said county the certificates of said 18f shares of the capital stock of said company for the purposes of sale on said execution. It is further ordered that John W. Yordermark be enjoined from interfering with the plaintiff, or the sheriff, in levying such execution upon the interests of Henry P. Yordermark in one-half of the stock of goods, and the accounts and assets of said partnership, to satisfy said execution, and that all sales and transfers heretofore made between said parties, are declared fraudulent and void. And that the plaintiff have the right to levy said execution upon the said piano described in the answer of Lillian, Ada, Mary and Maud Yordermark, the sale and transfer of which is set aside
Here is a judgment rendered against all the defendants in the complaint. They were all co-parties to the judgment, and all entitled to appeal. Hadley v. Hill, 73 Ind. 442" court="Ind." date_filed="1881-05-15" href="https://app.midpage.ai/document/hadley-v-hill-7043996?utm_source=webapp" opinion_id="7043996">73 Ind. 442; Gregory v. Smith, 139 Ind. 48" court="Ind." date_filed="1894-10-18" href="https://app.midpage.ai/document/gregory-v-smith-7052183?utm_source=webapp" opinion_id="7052183">139 Ind. 48. The statute makes it the duty of any part of the co-parties to the judgment, who may desire to appeal from a judgment against them all, to make all such co-parties, parties to such appeal. R. S. 1894, section 647; R. S. 1881, section 635. And we have recently held, on a careful consideration of the statute and the adjudicated cases, that the statute means that they must all he made co-appellants. Gregory v. Smith, supra. We there held that “making a part of the co-parties against whom the judgment is rendered appellees on * * appeal * * clothed them with no more rights, and created no more liabilities against them, than if they had not been made parties at all. ” Of the defendants, against whom judgment was rendered in the circuit court, Henry P. Vordermark, the Fort Wayne and New Haven Turnpike Company and the Tri-State Building and Loan Association of Port Wayne, Indiana, have been made appellees in this appeal, and not appellants. This, as we have seen, is the same as not making them parties to the appeal at all. The right conferred on them by the statute is to assail the judgment, and that they cannot do as appellees. Gregory v. Smith, supra.
The statute authorizes but one appeal from the same judgment, and before the right of appeal of any co-party can he barred by an appeal by a part of the co-parties to the judgment, he must be made a co-appellant in such appeal and served with notice thereof The statute requires that all such co-parties to the judgment
The appeal is, therefore, dismissed.