162 Ind. 136 | Ind. | 1903
Appeal from a judgment of the Grant Circuit Court sustaining the validity of the last will of one John Whisler, deceased. The appellant was the plaintiff below, and the defendants were David Whisler, John Whisler, William Whisler, Catherine Whisler, Cornelius Lumaree, executor of the estate of John Whisler, deceased, with the will annexed, Lewis Signs, trustee under the will of John Whisler, deceased, for David Whisler, John Whisler, William Wliisler, Clinton Whisler, and George Whisler, Lewis Signs, Meredith Wliisler, Lemoyne Whisler, and Earl Whisler. Judgment was rendered in favor of these defendants and against the plaintiff.
The assignment of errors is as follows: “State of Indiana, Supreme Court of Indiana. November Term, 1902. Clinton Whisler, appellant, v. David Whisler, John Whisler, William Whisler, George L. Whisler, Earl Whisler, Lemoyne Whisler, Meredith Whisler, Catherine Whisler, Cornelius Lumaree, executor, Lewis Signs, Lewis Signs, trustee, appellees. Assignment of errors.
“The appellant says there is manifest error in the judgment and proceedings in this cause, in this, to wit: (1) The court erred in sustaining the demurrer of Lumaree,
The statute provides that no pleadings shall be required in the Supreme Court upon an appeal, but that a specific assignment of all errors relied upon shall be entered on the transcript in matters of law only on or before the first day of the term at which the cause stands for trial. §667 Burns 1901. Rule six of this court is in these words: “The assignment of errors shall contain the full names of all the parties, and process when necessary shall issue accordingly.”
It has been held in many eases in this court that the assignment of errors is the appellant’s complaint in the appellate tribunal. Hollingsworth v. State, ex rel., 8 Ind. 257, 258; Bacon v. Withrow, 110 Ind. 94. Lawrence v. Wood, 122 Ind. 452; Elliott, App. Proc., §300; Ewbank’s Manual, §124.
The rule requiring the full names of all the parties to be set out in the assignment of errors has been enforced with great strictness, and the fact that process, when necessary, issues only for the persons named and described in the assignment of errors, indicates the importance of precision in the designation of the proper parties. Such strictness tends to systematize the appellate procedure, and to compel the identification of the parties. Elliott, App. Proc., §322.
It is said in Burke v. State, 17 Ind. 528: “The names of the parties to the assignment of errors are, ‘Win. H. Burke v. The State.’ This is not a compliance with rule one of this court. The full name of neither party is given. The assignment of errors in this court is like a
Again, in Snyder v. State, ex rel., 124 Ind. 335, Mitchell, J., said:. “The assignment of errors is the appellant’s complaint, and the only parties before this court, or over •whom it acquires jurisdiction, are those whose names appear therein.” See, also, Big Four, etc., Assn. v. Olcott, 146 Ind. 176; Barnett v. Bromley Mfg. Co., 149 Ind. 606; Smith v. Fairfield, 157 Ind. 491; Henderson v. Halleday, 10 Ind. 24; Thoma v. State, 86 Ind. 182; Peden v. Noland, 45 Ind. 354; Thomas v. Service, 90 Ind. 128; City of South Bend v. Thompson, 19 Ind. App. 19; McConahey v. Foster, 21 Ind. App. 416; Dunn v. Estate of Evans, 28 Ind. App. 447.
One of the defendants named and described in the complaint in this action was “Cornelius Lumaree, executor of the estate of John Whisler, deceased, with, the will annexed.” Another was Lewis Signs, who was sued and described in the pleading as a trustee under the will of John Whisler, deceased, for some five or more beneficiaries. Neither of these parties is so described in the assignment of errors. The names and descriptions which appear there are “Cornelius Lumaree, executor, Lewis Signs, trustee.” These two defendants were sued in their representative capacity, and not as individuals. Where a party is so sued the rule is that the complaint must contain sufficient averments to show thát the action is brought against the defendant in his representative capacity. Hunt v. Wilkinson, 2 Call (Va.) 49, 1 Am. Dec. 534; Worden v. Worthington, 2 Barb. (N. Y.) 368; Yates v. Hoffman, 5 Hun (N. Y.) 113; 8 Ency. Pl. & Pr., 683.
Where persons sue or are sued in a representative or official capacity the rule that the full names of the parties shall be set out in the assignment of errors requires that
As two of the parties named in the complaint, and in whose favor judgment was rendered against the appellant, are not properly designated in the assignment of errors, either in its title or body, we are compelled to hold that the assignment does not comply with rule six, and therefore that the appeal must be dismissed.
On Petition to Reinstate Appeal.
Appellant has filed a petition praying that his appeal be reinstated on the docket of this court. The grounds assigned are substantially the following: (1) That the court erred in holding that Cornelius Lumaree, executor of the -will of John Whisler, deceased, and Lewis Signs, trustee thereunder, were necessary parties to the appeal, or that either 'of them had -any interest in the judgment from which the appeal is prosecuted; (2) that the names of all parties having an interest in the judgment below were named in full compliance with rule six of this court; (3) that it appears by the record that Lumaree, the executor of the will in question, was defaulted before the trial, and thereby passed out of the case, and that no
The petitioner’s counsel in their argument insist that the names of all of the parties interested in the judgment below, or .who in any manner are affected thereby, are fully and correctly set out in the assignment of errors. The argument is further advanced that inasmuch as Lumaree, the executor of the will, was defaulted before final judgment of the court was rendered, whereby the validity of the will was affirmed, he in no sense can be said to be a party to such judgment, and hence has no interest in the appeal. It is said that it is disclosed by the verified petition herein that he was not the executor of the will at the time of the trial in this cause for the reason that he had been finally discharged prior thereto. In regard to Signs, the trustee, it is claimed that he was not served with process, and did not appear in the action. It may be said in passing that it must be remembered that in appeals to this court the certified transcript of the record imports upon its face absolute verity, and statements of parties or their counsel, whether verified or unverified, are not available to dispute the record, or to supply any matter not therein disclosed. Consequently appellant’s statement in his petition that Lumaree, the executor of the will, had been discharged as such executor before the final judgment was rendered is not available in the determination of that question.
We may properly note some of the things shown by the record in this cause. It appears that the purpose of the action was to contest and set aside, for several reasons, the last will of John Whisler, deceased. In this will the testator nominated and appointed Cornelius Lumaree the executor thereof, and, among other things, he, as such
The true test, as a general rule, for determining who should be made an appellee in an appeal to this court is, has the party an interest in maintaining the judgment from which the appeal is prosecuted. Ewbank’s Manual, §149; Elliott, App.-Proc., §160. Appellant in the lower court was interested in overthrowing the will, and in this court he is interested in securing a reversal of the judgment by which the validity thereof was affirmed. The' executor of the will, as a party below, was interested in a legal sense in defeating the overthrow of the will, and in-this court he is certainly interested in sustaining the judgment by which its validity was affirmed by the trial court. His position below, under the circumstances, was certainly hos
It is not the practice in this court for parties formally to demur to an assignment of errors, or to move to make such pleading more certain or specific; hence the assignment made must be treated and considered by the court as though it had been challenged by an appellant’s adversary for a deficiency therein. In considering the sufficiency of an assignment of errors all ambiguities -or uncertainties therein will be construed against the plead
In Brown v. Hicks, 1 Ark. 232, the court said: “There is a striking and wide difference between the averment in a declaration ‘executor, or being executor as aforesaid/ and the direct allegation ‘as executor aforesaid.’ In' one instance, ‘executor, or being executor as aforesaid/ are mere words of description, having exclusive reference to personal identity: in the other, the term ‘as executor aforesaid/ has but one meaning, which is fixed by law, and that is the party against whom the charge is made is sued in his representative character. This being the case, the defendant in the action is not charged as the executor of Thomas Phillips, deceased; for the declaration nowhere alleges that he was sued as such, and the words used, ‘executor as aforesaid/ are mere matter of description and surplusage; and the antecedent as aforesaid refers only to the personal description of the defendant.” Certainly, unless we indulge in presumptions, it can not be said that Lumaree was the executor of the will of John Whisler, deceased, and had been named as an appellee to the appeal in his representative capacity.
It is unnecessary that we consider further the question presented in respect to Signs, trustee, under the will, because the failure of appellant properly to name Lumaree the executor of the will must operate to dismiss the appeal, regardless of the question as to Signs.