147 Ind. 56 | Ind. | 1897
This was a suit by the appellee, Millie A. Wilkinson, against the appellants, Henry P.
The section of the statute, 645, Burns’ R. S. 1894, limiting the time for appeals, provides that: “Where the appellant is under legal disabilities at the time the judgment is rendered, he may have his appeal at any time within one year after the disability is removed.” There can be no doubt, therefore, that this appeal, as to said two minors, is in time, and cannot, for that reason, be dismissed. Little, if any, reason appears, however, in support of the proposition that this extension as to those under disabilities may, of itself, operate to extend the time for appeal as to those not under disability and who could have appealed within the year and rendered their appeal effective, notwithstanding the minority of other judgment defendants. Nor does the provision, section 669, Burns’ R. S. 1894, that “when any appeal has been dismissed, another appeal may be taken,” have the effect to extend to any appellapt, even if under disabilities, the right to appeal after the statutory limit of one year, and the removal of disabilities. That provision was intended simply to prevent the foreclosure of one’s right of appeal because of the dismissal of a former appeal. It was not designed to extend the time for an appeal. As to whether an appeal shall be dismissed depends upon the non-existence of jurisdiction in the court to which the appeal is taken, and when dismissed for such cause the status of the case is as if no appeal had been taken. The right to an appeal, where an earlier appeal has been dismissed for the want of jurisdiction, would probably have existed in the absence of this statutory provision, if taken in time. See Sanders v. Moore, 52 Ark. 376; In re Rose, 80 Cal. 166; Columbet v. Pacheco,
The right of appeal thus reserved to the minors can not be defeated by the conclusion that other parties to the judgment of the circuit court may have lost their right of appeal if they have complied with the requirements of the statute. No question is made that they have not complied with the statute, but it is said that section 647, Burns’ R. S. 1894, gives their co-appellants the right to maintain their appeal herein. That section provides that “A part of several co-parties may appeal; but in such case, they must, serve notice of the appeal upon all the other co-parties and file the proof thereof with the clerk of the Supreme Court. Unless they appear and decline to join, they shall be regarded as having joined, and shall be liable for their due proportion of the costs. If they decline to join, their names may be struck out, on motion; and they shall not take an appeal afterward, nor shall they derive any benefit from the appeal, unless from the necessity of the case, except persons under legal disabilities.” Another section of the statute, section 646, Burns’ R.S. 1894, should be considered in this connection: “The SupremeCourt, upon being satisfied that the statute of limitations has barred a part only of the appellants, may strike their names from the record, and proceed to affirm, or reverse, or modify the judgments as to those appellants only who are before the court.” Under the plain language of this section it has been held proper to strike out the names of those who might, but did not, appeal in time, and to consider the appeal as to those whose disabilities deferred the time for appeal as to them. McEndree v. McEndree. 12 Ind. 97; Hawkins v. Hawkins, Admr., 28 Ind. 66.
Upon the issues and judgment the property involved was the one-half interest in a stock of boots and shoes in Fort Wayne, and eighteen and three-quarter shares of stock in the New Haven and Fort Wayne Turnpike Company, claimed by John W. Vordermark by transfer from said Henry P. Vordermark and adjudged subject to said execution; one piano, claimed by Lillian Ada Vodermark and held to be subject to the execution; $85.00 in money, claimed by said Lillian Ada and Mary Maud Vordermark, and held to
The action of the trial court in overruling a demurrer to the complaint, filed on behalf of said Harry E. and Mary Maud, is assigned as error, and urged for our decision. The objection to the complaint is, that it did not allege that Henry P. Vordermark at that time held no other property subject to execution from which appellee’s execution could have been satisfied in whole or in part. It has been fully settled by the adjudications that the extraordinary remedy of proceedings supplementary to execution, as provided by our statute, will not be extended without necessity; that such necessity does not appear unless it is shown by some such allegation as that said to be absent from the complaint here in review. If under the allegations of such complaint it cannot be said that the execution creditor may not enforce his writ without resort to the property claimed by the third party, it would certainly not state a cause of action, or rather would not support the statutory remedy. Dillman v. Dillman, 90 Ind. 585; Earl v. Skiles, 93 Ind. 178; Cushman v. Gephart, 97 Ind. 46; Baker v. State, ex rel., 109 Ind. 47; Hollcraft v. Douglass, 115 Ind. 139; Balz v. Benninghof, 5 Ind. App. 522.
In Cushman v. Gephart, supra, the allegation was that “said Cushman had property at said county which he wrongfully refused to apply to the payment of said judgment, but which cannot be reached or levied on by such execution.” This was held insufficient as not showing a “necessity for the proceedings.”
In Baker v. State, supra, the allegation was that the appellant had “fraudulently concealed, removed, conveyed and transferred his property subject to execution,” and of this it was said by this court: “For aught that appears, he may have had an abundance of property in the county out of which the amount due upon the judgment might have been readily made by an ordinary execution.” The allegation that he had property and money' which he was fraudulently concealing and which should be applied to the judgment, we do not think sufficient to exclude the fact that he may have had property not concealed, but subject to execution, and from which the writ might have been fully satisfied. The demurrers of said Harry E and Mary Maud should, therefore, have been sustained; and for this error, the judgment, as to them, is reversed, with instructions to sustain their said demurrers, and, of necessity, the judgment as it incidentally affected said Building Association, as to turning out said stock for sale by the sheriff, is directed to be vacated.