Gary Railways v. Cline

94 N.E.2d 759, 121 Ind. App. 449, 1951 Ind. App. LEXIS 167

• Court: Indiana Court of Appeals
• Decided: March 30, 1951
• Docket: 18,112
• Status: Published

Opinions

ON MOTION TO DISMISS APPEAL

Royse, C. J.

Appellee Harry O. Cline brought this action against appellant and appellee Matthews for damages for loss of work and services, etc. for the death of his minor son who was killed in an intersection accident in Gary, Indiana. The accident occurred when appellant’s bus struck the truck of appellee Matthews in which said minor was riding.

Trial to a jury resulted in verdict against appellant only in favor of appellee Cline. From the judgment on that verdict appellant had appealed to this court.

Appellee Matthews filed his motion to dismiss on the following grounds:

No verdict was returned against appellee Matthews ; No motion for a new trial was filed by appellee Cline against appellee Matthews, a co-defendant in the trial court;

Appellee Matthews is not a co-party to the judgment;

Appellee Matthews is neither a proper, nor necessary party to this appeal.

Appellant cannot complain that no verdict was brought in against the appellee Matthews, who was sued as a joint tortfeasor.

Appellee Matthews has no interest in the judgment appealed from.

The entire cause, and all issues as between appellee Cline and appellee Matthews were disposed of in the trial court.

The jugment was final as to appellee Matthews;

There were no issues between the appellant and appellee Matthews which could result in a judgment for or against each other.

Neither appellant nor appellee Cline has opposed this motion.

On the authority of the cases of Hutson v. Brookshire (1923), 80 Ind. App. 273, 139 N. E. 190, 140 N. E. 440; Smith et al. v. Graves (1915), 59 Ind. App. 55, 108 N. E. 168; Van v. Union Insurance Company (1940), 108 Ind. App. 294, 25 N. E. 2d 280, (Transfer denied), the motion of appellee Matthews must be sustained.

Appeal as to appellee Matthews dismissed.

Draper, J., not participating.

Note. — Reported in 94 N. E. 2d 759.