WILSON v. ESTATE OF W. L. KINGS
No. 19,257
Appellate Court of Indiana
November 15, 1960
January 11, 1961
171 N. E. 2d 262 | 170 N. E. 2d 63 | 171 N. E. 2d 485
MYERS, J.
Mаrshall E. Hanley, of Muncie, James C. Courtney and Jack C. Brown, both of Indianapolis, for appellee.
MYERS, J.— This cause arises as the result of an amended claim having been filed by appellant, Leоla Wade Wilson, against the named appellee, Estate of W. L. Kings [Deceased], in the Delaware Circuit Court of Delaware County, Indiana. A demurrer was filed to the amended claim on the ground that it did not state facts sufficient to constitute a cause of action for claim against the estate. The court sustained this demurrer and entered judgment thereon when appellant failed to plead over. This appeal is from that judgment.
Upon examining the assignment of errors as filed in the transcript, we find the caption reads as follows: “Leola Wade Wilson Appellant vs Estate of W. L. Kings Appellee.”
An examination of the record reveals that a “Merchants Trust Company, executor of the estate of W. L. Kings, deceased,” filed a demurrer to the amended claim and requested entry of judgment after the court had sustained it. Thus, there was a personal representative of the estate at the time of entry of judgment. This persоnal representative is not named as a party to this appeal in the assignment of errors.
It has been held many times by the Supreme and Appellate Courts of Indiana that the estate of а decedent cannot be a party to an action without a representative. The mere naming of the estate as the party appellee is insufficient, as an estate is not a legal entity. The effect is the same as if no party appellee had been named in the assignment of errors. Otolski v. Estate of Nowicki (1959), 129 Ind. App. 492, 158 N. E. 2d 296; Carr v. Schneider‘s Estate (1943), 114 Ind. App. 149, 150, 51 N. E. 2d 392; Dallam v. Stockwell‘s Estate (1904), 33 Ind. App. 620, 71 N. E. 911; Guernsey‘s Estate v. Pennington (1904), 33 Ind. App. 119, 70 N. E. 1008; The Estate of Joseph Peden, Deceased v. Noland (1873), 45 Ind. 354; The Estate of Thomas v. Service (1883), 90 Ind. 128; The Estate of Wells v. Wells (1880), 71 Ind. 509; Dunn v. Estate of Evans (1902), 28 Ind. App. 447, 63 N. E. 36.
There was no motion to dismiss filed herein. However, when no jurisdiction exists, the appeal may be dismissed by the court upon its own motion without any suggestion from the parties. Otolski v. Estate of Nowicki, supra.
Appeal dismissed.
ON PETITION FOR REHEARING
MYERS, J.—Appellant has filed a petition for rehearing in this case, alleging in substance that we have interpreted Supreme Court Rule 2-6 erroneously; that since a claim may be filed in an estate without naming the personal representative, who becomes a party defendant by opеration of law, the same rule should apply on appeal; that an estate is a legal entity, a person in contemplation of law, and failure to name the personal representative thereof in the assignment of errors on appeal may be corrected pursuant to the provisions of Rule 2-6; that appellee has waived any question of jurisdiction by apрearing in this appeal and filing its brief on the merits.
The material part of Rule 2-6 as it applies in this case reads as follows:
“In the title to the assignment of errors all parties to the judgment seeking reliеf by the appeal shall be named as appellants, and all parties to the judgment whose interests are adverse to the interests of the appellants shall be named as appеllees. Assignment of cross-errors shall use the same title, but immediately thereafter shall designate the parties seeking relief and those against whom relief is sought by assignment of cross-errors. Failure prоperly to name parties will not be treated as jurisdictional. Amendments may be permitted upon such terms as the court shall direct.”
This rule pertains to the assignment of errors in an appeal specifically. It has no relationship to prior proceedings in the trial court, so the fact that a personal representative may be brought in as a party by operation of law withоut being named when a claim is filed against an estate in the lower court, is of no consequence herein.
It has been said many times that the assignment of errors is in the nature of a complaint by the appellant in the appellate tribunal. Flanagan, Wiltrout and Hamilton‘s Indiana Trial and Appellate Practice, §2382, page 152, and authorities cited therein; Bolden v. State (1956), 235 Ind. 695, 131 N. E. 2d 301. Without a proper assignment of еrrors this court acquires no jurisdiction over the subject-matter of the appeal. Baugher et al. v. Hall, Receiver, etc. (1958), 238 Ind. 170, 147 N. E. 2d 591. Where there is a failure to properly name parties, either as appellants or appellees, the assignment of errors is defective and ineffectual. Such requires a dismissal of the appeal. Baugher et al. v. Hall, Receiver, etc., supra; Cook v. Albrecht et al. (1957), 127 Ind. App. 457, 143 N. E. 2d 121. The fact that thе appellee herein appeared and filed a brief on the merits does not waive the question of jurisdiction, it being the duty of this court to decide
Appellant argues that an estate of a deceased person is a legal entity, and that failurе to name the personal representative as a party appellant comes within the provisions of Rule 2-6, which says:
“Failure properly to name parties will not be treated as jurisdiсtional.”
This sentence has been interpreted by the Supreme Court in the Baugher case, supra, wherein the following statement was made (at page 176 of 238 Ind., at page 594 of 147 N. E. 2d) :
“Amended Rule 2-6 still requires an assignment of errors. As we construe the rule, it does not dispense with the necessity of naming in the assignment of errors ‘all parties to the judgment seeking relief by the appeal’ and ‘all parties to the judgment whose interests are adverse to the interests of the appellants.’ Rule 2-6 does not say ‘Failure to name parties will not be treated as jurisdictional.’ The word ‘properly’ limits the application and effeсt of the new jurisdictional rule adopted. The ordinary meaning of ‘properly’ is ‘Suitably; fitly; strictly; rightly; correctly‘; Webster‘s New Int. Dict. (2d Ed.) Unabridged. It may be that Rule 2-6 should be further amended, but as it stands it is now the law of this jurisdiction on appeals, and we as well as the parties to the judgment in the trial court are bound by it.”
Appellant presents us with two cases which she claims substantiate her position that an estate is a person, and thus a party to the appeal, although not properly named. In the case of Billings v. State (1886), 107 Ind. 54, 55, 6 N. E. 914, 7 N. E. 763, a criminal information
“The estate of a decedent is a person in legal contemplation.”
It held that the information stated a valid offense. But it also stated that unless this definition was accepted there would be a failure of justice in cases of this type. It must be remembered that this was a criminal and not a civil case.
In Taggart, Administrator v. Tevanny (1891), 1 Ind. App. 339, 346, 27 N. E. 511, 512, there was an appeal from a jury‘s verdict awarding appellee a sum of money based on a claim filеd against an estate. One of the grounds of error on appeal was that the administrator had never been made a party to the action in the trial court. This court overruled that contention, stating that there was no merit to the assignment because the statute which governed the filing of claims did not require the personal representative to be named at that time. (Present law regarding the filing of claims is substantially the same in the Probate Code enacted in 1953,
“It has been held that the estate of a decedent is a person, and recognized as such in law“, citing the Billings case.
“. . . but we do not place our ruling upon that ground.”
It then reiteratеs that, pursuant to the statute, it is not a prerequisite to the action that the name of a personal representative be endorsed on the claim as a defendant.
In our opinion, thesе cases are not controlling. First, because the Billings case involved a criminal matter, which puts it into an entirely different category from that of the civil procedure in probate matters; аnd, secondly, because the holding of the court in the Tevanny case was not based on the premise that the estate of a decedent is a person. Furthermore, these cases have been superseded by other later decisions of our Supreme and Appellate Courts which have held consistently that an estate being named as such in an assignment of errors is not a party appellant or appellee, giving the court jurisdiction to hear the appeal. See cases cited in our original opinion herein. The Baugher case, supra, positively stated (at page 171 of 238 Ind., at page 592 of 147 N. E. 2d) :
“An estate, a receivership, a trusteeship are not parties to the judgment in the lower court because they are not legal entities.” (Our emphasis.)
If an estate is not considered a party to the judgment in the lower court, it certainly cannot be considered as such in this court. Since this is the law of this jurisdiction, as settled in the Baugher case, supra, we are bound by it.
Petition for rehearing denied.
MYERS, J.