Gourley v. Embree

Indiana Supreme Court

Gourley v. Embree

36 N.E. 846, 137 Ind. 82, 1894 Ind. LEXIS 190

CourtIndiana Supreme Court

DecidedMarch 14, 1894

DocketNo. 16,642

StatusPublished

Cited by24 cases

This text of 36 N.E. 846 (Gourley v. Embree) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gourley v. Embree, 36 N.E. 846, 137 Ind. 82, 1894 Ind. LEXIS 190 (Ind. 1894).

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Opinion

Dailey, J.

This was an action, in the Gibson Circuit Court, by the appellee, Eleanor Embree, against the appellant, Eva Gourley, and Elisha R. Embree, George Kendle and Thomas R. Paxton, to enforce an alleged mortgage lien upon certain real estate.

The sixth rule of this court prescribes that “the assignment of errors shall contain the full names of the parties,” and it has been the consistent holding of this court that a failure to set forth the full names of all the parties to the judgment appealed from renders the assignment of error defective and unavailing. Elliott’s App. Proced., section 822.

The assignment of errors constitutes the appellant’s complaint in the Supreme Court, and by it he must bring the proper parties before the court, and properly set forth the causes upon which he relies for relief. A failure to do any of these things is fatal to his standing in court. He can not have a lawsuit by himself, nor can he select from the parties to the final judgment such as he chooses to name, and omit the others. He must name all who are affected by the judgment appealed from. If he has not done so, the assignment of error will be held unavailing whenever the defect is brought to the [83]*83notice of the court. Elliott’s App. Proced., section 401; Braden v. Leibenguth, 126 Ind. 336.

Filed March 14, 1894.

The assignment of error upon the record, in this case, names but two parties, Eva Gourley, the appellant, and Eleanor Embree, the appellee. A casual examination of the transcript discloses that the parties to the cause were Eleanor Embree, the plaintiff, and the defendants, Eva Gourley, Elisha R. Embree, George Eendle and Thomas R. Paxton. All the defendants appeared, filed their demurrers and answers, participated in the trial and were equally bound and affected by the final judgment from which this appeal is prosecuted. The names of Elisha R. Embree, George Kendle and Thomas R. Paxton are wholly omitted from the assignment of error, and for this reason no question is presented for decision.

The appeal is, therefore, dismissed.

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Dailey, J.

This was an action, in the Gibson Circuit Court, by the appellee, Eleanor Embree, against the appellant, Eva Gourley, and Elisha R. Embree, George Kendle and Thomas R. Paxton, to enforce an alleged mortgage lien upon certain real estate.

The sixth rule of this court prescribes that “the assignment of errors shall contain the full names of the parties,” and it has been the consistent holding of this court that a failure to set forth the full names of all the parties to the judgment appealed from renders the assignment of error defective and unavailing. Elliott’s App. Proced., section 822.

The assignment of errors constitutes the appellant’s complaint in the Supreme Court, and by it he must bring the proper parties before the court, and properly set forth the causes upon which he relies for relief. A failure to do any of these things is fatal to his standing in court. He can not have a lawsuit by himself, nor can he select from the parties to the final judgment such as he chooses to name, and omit the others. He must name all who are affected by the judgment appealed from. If he has not done so, the assignment of error will be held unavailing whenever the defect is brought to the [83]*83notice of the court. Elliott’s App. Proced., section 401; Braden v. Leibenguth, 126 Ind. 336.

Filed March 14, 1894.

The assignment of error upon the record, in this case, names but two parties, Eva Gourley, the appellant, and Eleanor Embree, the appellee. A casual examination of the transcript discloses that the parties to the cause were Eleanor Embree, the plaintiff, and the defendants, Eva Gourley, Elisha R. Embree, George Eendle and Thomas R. Paxton. All the defendants appeared, filed their demurrers and answers, participated in the trial and were equally bound and affected by the final judgment from which this appeal is prosecuted. The names of Elisha R. Embree, George Kendle and Thomas R. Paxton are wholly omitted from the assignment of error, and for this reason no question is presented for decision.

The appeal is, therefore, dismissed.

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Bluebook (online)

36 N.E. 846, 137 Ind. 82, 1894 Ind. LEXIS 190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gourley-v-embree-ind-1894.

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