Booker v. Killion

Indiana Court of Appeals

Booker v. Killion

64 N.E. 101, 29 Ind. App. 196, 1902 Ind. App. LEXIS 123

CourtIndiana Court of Appeals

DecidedMay 27, 1902

DocketNo. 4,169

StatusPublished

Cited by2 cases

This text of 64 N.E. 101 (Booker v. Killion) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Booker v. Killion, 64 N.E. 101, 29 Ind. App. 196, 1902 Ind. App. LEXIS 123 (Ind. Ct. App. 1902).

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Opinion

Comstock, J.

Appellee brought this action in ejectment against appellants and Rankin and Rankin to recover possession of certain real estate described in the complaint. Appellants answered by general denial. Rankin and Rankin filed a disclaimer. The court made, upon proper request, a special finding of facts, stated conclusions of law thereon, and rendered judgment in favor of appellee and against appellants for the possession of the land and for one cent damages.'

Upon this appeal the error assigned is that the court erred in its conclusions of law upon the facts found. Ap[197]*197pellee, before discussing appellant’s brief, moved to dismiss the appeal. This motion is based upon the following facts disclosed by the record: At the time the court announced its findings of facts and conclusions of law only two of the appellants, Owen Booker and Benjamin Eeney, excepted to the conclusions of law. The other appellants did not at any time except. The assignment of error is joint by the four appellants.

It is settled law in this State that in ordinary adversary proceedings, in order to save any question for review in an appellate court, not only must the exceptions be taken at the time the decision is made, but that they can not be taken after that time. Wabash R. Co. v. Dykeman, 133 Ind. 56, 63, and cases cited; Smith v. McKean, 99 Ind. 101; Kolle v. Foltz, 74 Ind. 54; Johnson v. Bell, 10 Ind. 363; Coan v. Grimes, 63 Ind. 21; Dickson v. Lambert, 98 Ind. 487; Cincinnati, etc., R. Co. v. Leviston, 97 Ind. 488; Matsinger v. Fort, 118 Ind. 107; Midland R. Co. v. Dickason, 130 Ind. 164; Brown v. Ohio, etc., R. Co., 135 Ind. 587; Barner v. Bayless, 134 Ind. 600.

It is also the established rule that a joint assignment of errors must be good as to all of the appellants who join in it, or it will be good as to none. Carr v. Carr, 137 Ind. 232, 234; Medical College, etc., v. Commingore, 140 Ind. 296; Goss v. Wallace, 140 Ind. 541; Armstrong v. Dunn, 143 Ind. 433; Earhart v. Farmers Creamery, 148 Ind. 79; Hubbard v. Bell, 4 Ind. App. 180; Cannelton, etc., Co. v. Burkett, 13 Ind. App. 277; Kempf v. Union, etc., Assn., 13 Ind. App. 570; Killian v. State, ex rel., 15 Ind. App. 261; Shick v. Citizens, etc., Co., 15 Ind. App. 329, 57 Am. St. 230; Supreme Council, etc., v. Boyle, 15 Ind. App. 342; Board, etc., v. Fraser, 19 Ind. App. 520; Sweeney Co. v. Fry, 151 Ind. 178, and authorities cited.

Appellants, Booker and Eunnels, not having excepted to the conclusions of law, have no right to. complain. ' The [198]*198assignment of error is not, therefore, g’ood as to either of the appellants.

The judgment must be affirmed without a consideration of the merits of the controversy.

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Comstock, J.

Appellee brought this action in ejectment against appellants and Rankin and Rankin to recover possession of certain real estate described in the complaint. Appellants answered by general denial. Rankin and Rankin filed a disclaimer. The court made, upon proper request, a special finding of facts, stated conclusions of law thereon, and rendered judgment in favor of appellee and against appellants for the possession of the land and for one cent damages.'

Upon this appeal the error assigned is that the court erred in its conclusions of law upon the facts found. Ap[197]*197pellee, before discussing appellant’s brief, moved to dismiss the appeal. This motion is based upon the following facts disclosed by the record: At the time the court announced its findings of facts and conclusions of law only two of the appellants, Owen Booker and Benjamin Eeney, excepted to the conclusions of law. The other appellants did not at any time except. The assignment of error is joint by the four appellants.

It is settled law in this State that in ordinary adversary proceedings, in order to save any question for review in an appellate court, not only must the exceptions be taken at the time the decision is made, but that they can not be taken after that time. Wabash R. Co. v. Dykeman, 133 Ind. 56, 63, and cases cited; Smith v. McKean, 99 Ind. 101; Kolle v. Foltz, 74 Ind. 54; Johnson v. Bell, 10 Ind. 363; Coan v. Grimes, 63 Ind. 21; Dickson v. Lambert, 98 Ind. 487; Cincinnati, etc., R. Co. v. Leviston, 97 Ind. 488; Matsinger v. Fort, 118 Ind. 107; Midland R. Co. v. Dickason, 130 Ind. 164; Brown v. Ohio, etc., R. Co., 135 Ind. 587; Barner v. Bayless, 134 Ind. 600.

It is also the established rule that a joint assignment of errors must be good as to all of the appellants who join in it, or it will be good as to none. Carr v. Carr, 137 Ind. 232, 234; Medical College, etc., v. Commingore, 140 Ind. 296; Goss v. Wallace, 140 Ind. 541; Armstrong v. Dunn, 143 Ind. 433; Earhart v. Farmers Creamery, 148 Ind. 79; Hubbard v. Bell, 4 Ind. App. 180; Cannelton, etc., Co. v. Burkett, 13 Ind. App. 277; Kempf v. Union, etc., Assn., 13 Ind. App. 570; Killian v. State, ex rel., 15 Ind. App. 261; Shick v. Citizens, etc., Co., 15 Ind. App. 329, 57 Am. St. 230; Supreme Council, etc., v. Boyle, 15 Ind. App. 342; Board, etc., v. Fraser, 19 Ind. App. 520; Sweeney Co. v. Fry, 151 Ind. 178, and authorities cited.

Appellants, Booker and Eunnels, not having excepted to the conclusions of law, have no right to. complain. ' The [198]*198assignment of error is not, therefore, g’ood as to either of the appellants.

The judgment must be affirmed without a consideration of the merits of the controversy.

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64 N.E. 101, 29 Ind. App. 196, 1902 Ind. App. LEXIS 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/booker-v-killion-indctapp-1902.

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