Wilkinson v. Vordermark, 32 Ind. App. 633

32 Ind. App. 633 | Ind. Ct. App. | 1904

Black, J.

This was a proceeding supplementary to execution, brought by the appellant, Millie A. Wilkinson, who had been the wife of Henry P. Vordermark, from whom she had obtained a divorce with a judgment for alimony. She sought to subject to execution on this judgment certain personal property alleged to have been disposed of fraudulently by her late husband. She made defendants in this proceeding the execution defendant, John W. Vordermark, the Et. Wayne & New Haven Turnpike Company, the Tri-State Building & Loan Association of Ft. Wayne, and three of the execution defendant’s children, namely, Harry Vordermark, Mary Maud Vordermark, and Lillian Ada Vordermark. The appellant recovered judgment against all these defendants. From this judgment an appeal was taken to the Supreme Court, and it appears from the judgment on appeal as shown in the record before us and in Vordermark v. Wilkinson, 147 Ind. 56, that the judgment of the trial court was reversed as to Harry Vordermark and Mary Maud Vordermark because of an error in overruling their demurrer for want of sufficient facts to the complaint, and, as a benefit derivable from the appeal from the necessity of the case, the judgment, so far as it incidentally affected the building and loan association by requiring the turning out for sale by the sheriff of certain stock of that association claimed by Harry Vordermark, was vacated; and as to all the other defendants the appeal was dismissed because not brought in proper time. This loft the judgment as to such other defendants in full force and effect and unappealable. It was held by the Supreme Court that an interest in a certain sum of money claimed by Mary Maud Vordermark, and certain shares of stock of the building and loan association, and a certain sum of money claimed by Harry Vordermark, constituted the only property in question upon that appeal. ■ The cause having been redocketed in the trial court, and the opinion of the Supreme Court, above mentioned, having been filed, in the year 1898 further proceedings were had in the cause. As appears by- an entry of September 23, 1901, the parties then appeared, “and the death of Mary Maud Vordermark is suggested to the court;” but it does not appear from the record that any person or persons were formally substituted as her representatives. Afterward the venue was changed from the Allen Circuit Court to the court below, and the cause was there again tried by the court in November, 1901, and the court found, amongst other things, “in favor of the defendant Harry Vordermark, the heirs at law of Mary Maud Vordermark, who died during the pendency of this action, intestate, and leaving her father, Henry P. Vordermark, her brother, Harry Vordermark, and her sister, Lillian Ada Vordermark, surviving her as her only heirs at law, and the Tri-State Building. & Loan Association. And the court doth further find in favor of the .plaintiff as against the defendants Henry P. Vordermark, John W. Vordermark, and Lillian Ada Vordermark and Ft. Wayne & New Haven Turnpike Company, and that the judgments heretofore rendered against them in this action by the Allen Circuit Court, of Allen county, Indiana, at its April term, 1893, and each of them, should be preserved and maintained as said judgments were by the Supreme Court of Indiana on appeal therefrom affirmed.” It was thereupon adjudged that “Harry Vordermark, the heirs at law of Mary Maud Vordermark, and the Tri-State Building & Loan Association, and each of them, do have, and recover of the plaintiff their and each of their costs in this action expended; and it is further decreed and adjudged by the court that the plaintiff do have and recover of the defendants Henry P. Vordermark, John W. Vordermark, Lillian Ada Vordermark and the Ft. Wayne & New Haven Turnpike Company the relief granted her in and by tbe judgments so rendered in bcr favor against them in the said Allen Circuit Court, which appears elsewhere in tbe record of this action, and which judgments were affirmed by the Supreme Court of Indiana, and her costs in this action by her expended, so far as tbe same relate to said defendants.”

Tbe appellant’s motion for a new trial, stating as grounds therefor that tbe finding against her was not sustained by tbe evidence, and that it was contrary to law, was overruled; and this ruling is alone assigned as error. In tbe assignment tbe plaintiff, Millie A. Wilkinson, is named as tbe appellant, and all tbe defendants, as named in tbe introductory part of this opinion, are named as tbe appellees, all, including Mary Maud Vordermark, in their individual characters, and no person in any representative capacity.

Tbe appellant, by her appeal, seeks tbe reversal of tbe judgment against her in favor of Harry Vordermark, tbe heirs at law of Mary Maud Vordermark and the Tri-State Building & Loan Association. It appears from tbe record that Mary Maud Vordermark died while tbe cause was 'pending in tbe Allen Circuit Court. No representative was substituted for her formally, but tbe court below in its finding and judgment, treating the cause of action as surviving against her heirs at law, found and adjudged in their favor against tbe appellant. She could not be a party to tbe appeal. Having died before finding and judgment, tbe action did not thereby abate, but tbe action might have been allowed by tbe Allen Circuit Court or by tbe court below, on motion or supplemental complaint, to be continued against her proper representative. §272 Burns 1901. As tbe proceeding related solely to personal property, her personal representative, and not her heirs at law, should have been substituted for her before judgment.

Since tbe cause has been in this court tbe appellant filed her motion here that Henry P. Vordermark, Harry Vordermark, and Lillian Ada -Vordermark be substituted as appellees to answer as to the interest of Mary Maud Vordermark, deceased, supporting the motion by an affidavit of an attorney for the appellant, stating that Mary Maud Vordermark “one of the appellees in said cause, died prior to this appeal, leaving surviving her as her sole heirs at law, her father, Henry P. Vordermark, her brother, Harry Vordermark, and her sister, Lillian Ada Vordermark, all of whom were parties defendant in said suit, and are appellees in this appeal.” This motion was overruled, at the time of its presentation, very properly; for the record shows that her decease was suggested before trial or judgment, and the statutes contemplated substitution of the proper representative in the-trial court, and not in this court, in such case. §§272, 648, 649, 675 Burns 1901. And, furthermore, if it were a proper case for substitution of a representative, the personal representative, and not the heirs at law of the deceased party, would be the proper representative.

It devolved upon the appellant (the plaintiff) to cause the substitution of a proper representative for the deceased defendant, and not upon any of the other defendants. There was no cause of action against the heirs at law of the deceased party defendant on trial, and the appellant could not have been entitled to a finding against them in such capacity. Without herself causing the substitution of a proper representative, she' suffered judgment to be taken against her in favor of the heirs at law of the deceased defendant, making no objection to the substitution, apd then named the deceased defendant as an appellee; and the heirs at law as such, in whose favor the court found, are not parties here. If it may be said that there has been no adjudication upon the interest of the deceased defendant as against her personal representative, and that the substitution of such representative may still be made in the court below, it would be against the policy of the law forbidding several appeals in one cause to proceed to inquire wlietber or not there was error in finding in favor of the other d&fendants who recovered against the appellant. The interest of the deceased defendant is not represented in this court. She can not be made a party, being deceased, and no representative of the decedent is a party. A portion of the persons in whose favor the judgment appealed from was rendered are not before us. The want of proper parties is attributable to the appellant alone. We can not either reverse or affirm the judgment rendered by the trial court as a whole or in part in the condition of the cause as presented to us. See Vordermark v. Wilkinson, 142 Ind. 142; Lawson v. Newcomb, 12 Ind. 439; Clodfelter v. Hulett, 92 Ind. 426; Holland v. Holland, 131 Ind. 196; Ewbank’s Manual, §§149, 150.

Appeal dismissed.