Campbell-Smith-Ritchie Co. v. Souders

115 N.E. 354, 64 Ind. App. 138, 1917 Ind. App. LEXIS 43

• Court: Indiana Court of Appeals
• Decided: March 16, 1917
• Docket: No. 9,786
• Status: Published

Opinion

Caldwell, J.

In a proceeding before the Industrial Board, brought under the Workmen’s Compensation Act (Acts 1915 p. 392), the board returned an award in favor of appellee as widow of Earnest Souders, employe, against appellant Campbell-Smith-Ritchie Company, employer. Said appellant and its coappellant, The Fidelity and Casualty Company of New York, thereupon filed their joint motion for a new trial, which motion the board overruled on the ground that in proceedings under said act, a motion for a new trial is not contemplated. Appellants jointly reserved an exception, jointly appealed and jointly assign error in this court.

It will be observed that the award was against the Campbell-Smith-Ritchie Company alone. No reference is made to its coappellant in the proceedings, and it does not appear therein prior to the filing of the motion for a new trial. The record in no manner discloses what interest, if any, said coappellant has in the subject-matter of the controversy. Under such circumstances appellee moves to dismiss the appeal. We are advised by the briefs filed by appellants in opposition to such motion, that the relation of The Fidelity and Casualty Company to the claim involved in this proceeding is that of insurer of its coappellant against liability under the Workmen’s Compensation Act, but the record in no manner reveals such fact.

1. Preliminary to a consideration of the motion to dismiss, it may be said that the board was correct in concluding that in proceedings under that act a motion for a'new trial is not contemplated. Union Sanitary Mfg. Co. v. Davis (1916), 63 Ind. App. 548, 114 N. E. 872, 115 N. E. 676.

2. 3. 4. In order that a person may be entitled to maintain an appeal, it must appear that as party or privy, he has a substantial interest in the subject-matter of the litigation, and that he is prejudiced or aggrieved by the judgment or decree from which he seeks to appeal. Ansel v. Kyger (1915), 60 Ind. App. 259, 110 N. E. 559; Ladd v. Kuhn (1901), 27 Ind. App. 535, 61 N. E. 747; Richey v. Cleet (1910), 46 Ind. App. 326, 92 N. E. 175. If a stranger to the record, or if the judgment appealed from does not on its face affect him, but in some manner he has become privy to liability thereunder so that he has an appealable interest therein, his right to appeal, not otherwise appearing from the record, should be made to appear by the assignment of error. Waldrip v. McConnell (1908), 42 Ind. App. 54, 84 N. E. 517; Union Traction Co. v. Basey (1904), 164 Ind. 249, 73 N. E. 263; Jager v. Doherty (1878), 61 Ind. 528. See, also Ladd v. Kuhn (1899), 154 Ind. 313, 56 N. E. 671; Ladd v. Kuhn, supra. It therefore seems apparent that an appealable interest in The Fidelity and Casualty Company does not appear.

5. When several parties unite in a joint assignment of error, the assignment will be unavailing unless it is good as to all joining therein. Carr v. Carr (1894), 137 Ind. 232, 36 N. E. 899; Supreme Council, etc. v. Boyle (1895), 15 Ind. App. 342, 44 N. E. 56. The assignment of error here is joint. It presents no question as to one appellant, and hence is unavailing as to both appellants.

The appeal is dismissed.

Note. — Reported in 115 N. E. 354. Appeal and review generally, under Workmen’s Compensation Act, L. R. A. 1916 A 178, 266.