[319]*319On Motion to Dismiss
Kelley, C. J.
— The transcript and Assignment of Errors in this appeal were filed and submitted on December 28, 1961. Said Assignment of Errors named as appellee “Estate of Noble F. Denny, Deceased.” No other appellee was named either in the title or the body of the Assignment of Errors.
Pursuant to extension of time duly granted therefor, appellant’s brief was filed on February 28, 1962. On March 13, 1962 the designated appellee filed petition for extension of time to file brief and the same was granted to and including May 9, 1962.
On March 29, 1962 Gladys M. Denny, Executrix of the Estate of Noble F. Denny, deceased, filed a petition to withdraw said petition for extension of time to file brief and for permission to file motion to dismiss the appeal. Said petition was denied on April 6, 1962. Thereafter, on April 17, 1962 a brief, entitled “Appellee’s Brief” was filed and a motion to dismiss the appeal was filed by said Gladys M. Denny, Executrix, etc.
The motion to dismiss the appeal is predicated upon the ground that all times since the filing of the original complaint in the Boone Circuit Court and down to the present time, said Gladys M. Denny has been, and is, the duly appointed qualified and acting executrix of the Estate of Noble F. Denny, deceased, and that she is not named or made a party appellee in the Assignment of Errors.
The record reflects that appellant’s claims in the estate proceedings of said decedent were filed against: “Gladys Denny, Executrix,” and that the judgment, after trial and finding by the court, without jury, was as follows:
[320]*320“ . . . the court now finds for the defendant executrix and against the claimant on said claims .... It is therefore, considered, ordered and adjudged by the court that the claimant take nothing, by his claims and that the defendant executrix have and recover her costs herein.” (Emphasis supplied) .
Thus, it is apparent that the judgment was rendered for and in favor of the executrix, Gladys Denny, and that, under Supreme Court Rule 2-6, she is the party to the judgment “whose interests are adverse” to the interests of the appellant. Her interests and duties, as executrix of said estate, are vitally and intimately affected by said judgment. If the judgment had been in favor of appellant, said Gladys Denny, as such executrix, would have been the only party capable of taking and perfecting an appeal therefrom. She, as such executrix, under said Rule 2-6, should have been named as a party appellee in the assignment of errors, which is considered as appellant’s complaint in this court.
The said judgment was rendered on June 9, 1961 and on July 7, 1961, appellant filed his motion for a new trial. Said motion was overruled on October 3, 1961. Appellant’s time for perfecting his appeal expired on January 2, 1962.
On April 19, 1962 appellant filed herein a motion to amend the assignment of errors “by inserting in the title thereof, as an appellee, Gladys Mae Denny, Executrix of the Estate of Noble Frank Denny, Deceased.” In support of said motion, appellant cites “Jasper & Chicago Motor Express, Inc. v. Ziffrin Truck Lines, Inc. (May, 1961), 175 N. E. 2d 20,” and says that the Supreme Court therein, in effect, held that the failure to name a party in the assignment of errors is not [321]*321jurisdictional and that the appellant is entitled to amend his assignment of errors.
The Supreme Court, in said Ziffrin case, by a Per Curiam opinion, disapproved our statement in the same case (see 172 N. E. 2d 586), to the effect that the failure to name a party in the assignment of errors is jurisdictional. It may be fairly said, we think, that by its Per Curiam opinion in said Ziffrin case (as reported in said 175 N. E. 2d 20) the Supreme Court evinced its intention of departing from the rule generally adhered to by both the Supreme Court and our court before and after the amendment of Rule 2-6 in 1943, to the effect that the failure to name parties, either as appellants or appellees, is fatal to the appeal on jurisdictional grounds, except where modified by statute. Generally, see the following, which constitute only a few among many: Keiser v. Howard (1927), 199 Ind. 137, 155 N. E. 707; Hayes et al. v. Adams et al. (1943), 221 Ind. 480, 49 N. E. 2d 345; Nordyke & Marmon Co. v. Fitzpatrick (1904), 162 Ind. 663, 71 N. E. 46; Voss v. Balz (1932), 203 Ind. 221, 179 N. E. 552; Second National Bank of Robinson, Ill. v. Scudder (1937), 212 Ind. 283, 6 N. E. 2d 955; Ex Parte Fennig et al., Ex Parte Whipple (1939), 216 Ind. 298, 23 N. E. 2d 678; Hildebrand v. Strickland (1935), 100 Ind. App. 443, 194 N. E. 190; In re Wiles, In re Gibbs (1935), 208 Ind. 271, 195 N. E. 572; Smith v. Holtz (1901), 26 Ind. App. 692, 60 N. E. 728; Jenkins v. Steele (1913), 55 Ind. App. 11, 102 N. E. 139; Estate of Joseph Peden, Deceased v. Noland (1873), 45 Ind. 354; The Estate of Thomas v. Service (1883), 90 Ind. 128; Dallam v. Stockwell’s Estate (1904), 33 Ind. App. 620, 71 N. E. 911; Indiana Construction Material Co. v. Gelopulos (1961), 131 Ind. App. 494; Cook v. Albrecht (1957), 127 Ind. App. 457, 143 N. E. 2d 121; Baugher [322]*322et al. v. Hall, Receiver, etc. (1958), 238 Ind. 170, 147 N. E. 2d 591; Otolski v. Estate of Nowicki (1959), 129 Ind. App. 492, 158 N. E. 2d 296; Wilson v. Kings Estate (1961), 131 Ind. App. 412, 171 N. E. 2d 485; Lafayette Chapter, etc. v. City of Lafayette et al. (1959), 129 Ind. App. 425, 157 N. E. 2d 287; Russell v. Moore (1960), 130 Ind. App. 351, 164 N. E. 2d 670; Allen et al. v. Review Board of Ind. Employ. Sec. Div. (1959), 130 Ind. App. 165, 162 N. E. 2d 689; McArdle v. Board of Zoning Appeals (1960), 131 Ind. App. 5, 167 N. E. 2d 608.
Said Rule 2-6 provides, in part:
“Failure properly to name parties will not be treated as jurisdictional.” (Our emphasis).
In Allmon et al. v. Review Board, etc. et al. (1953), 124 Ind. App. 212, 215, 116 N. E. 2d 115, we held that said quoted part of said rule referred to “misspelling of names, initials or where incorrect given names are listed or other similar means of identification. It does not refer to where there is a total lack or failure on the part of those taking an appeal to name in the assignment of errors the proper party appellants.”
In 1958 our Supreme Court, then composed of the same membership as at present, with one exception, in Baugher et al. v. Hall, Receiver, etc., supra, a Per Curiam opinion, quoted from and impliedly approved the holding in said Alimón case, supra, and noted that “considerable confusion has resulted in the interpretation and effect of failure to name parties on appeal” and that “the situation should now be clarified.” The clarification made thereby was that said Rule 2-6 “does not dispense with the necessity of naming in the assignment of errors ‘all parties to the judgment seeking [323]
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[319]*319On Motion to Dismiss
Kelley, C. J.
— The transcript and Assignment of Errors in this appeal were filed and submitted on December 28, 1961. Said Assignment of Errors named as appellee “Estate of Noble F. Denny, Deceased.” No other appellee was named either in the title or the body of the Assignment of Errors.
Pursuant to extension of time duly granted therefor, appellant’s brief was filed on February 28, 1962. On March 13, 1962 the designated appellee filed petition for extension of time to file brief and the same was granted to and including May 9, 1962.
On March 29, 1962 Gladys M. Denny, Executrix of the Estate of Noble F. Denny, deceased, filed a petition to withdraw said petition for extension of time to file brief and for permission to file motion to dismiss the appeal. Said petition was denied on April 6, 1962. Thereafter, on April 17, 1962 a brief, entitled “Appellee’s Brief” was filed and a motion to dismiss the appeal was filed by said Gladys M. Denny, Executrix, etc.
The motion to dismiss the appeal is predicated upon the ground that all times since the filing of the original complaint in the Boone Circuit Court and down to the present time, said Gladys M. Denny has been, and is, the duly appointed qualified and acting executrix of the Estate of Noble F. Denny, deceased, and that she is not named or made a party appellee in the Assignment of Errors.
The record reflects that appellant’s claims in the estate proceedings of said decedent were filed against: “Gladys Denny, Executrix,” and that the judgment, after trial and finding by the court, without jury, was as follows:
[320]*320“ . . . the court now finds for the defendant executrix and against the claimant on said claims .... It is therefore, considered, ordered and adjudged by the court that the claimant take nothing, by his claims and that the defendant executrix have and recover her costs herein.” (Emphasis supplied) .
Thus, it is apparent that the judgment was rendered for and in favor of the executrix, Gladys Denny, and that, under Supreme Court Rule 2-6, she is the party to the judgment “whose interests are adverse” to the interests of the appellant. Her interests and duties, as executrix of said estate, are vitally and intimately affected by said judgment. If the judgment had been in favor of appellant, said Gladys Denny, as such executrix, would have been the only party capable of taking and perfecting an appeal therefrom. She, as such executrix, under said Rule 2-6, should have been named as a party appellee in the assignment of errors, which is considered as appellant’s complaint in this court.
The said judgment was rendered on June 9, 1961 and on July 7, 1961, appellant filed his motion for a new trial. Said motion was overruled on October 3, 1961. Appellant’s time for perfecting his appeal expired on January 2, 1962.
On April 19, 1962 appellant filed herein a motion to amend the assignment of errors “by inserting in the title thereof, as an appellee, Gladys Mae Denny, Executrix of the Estate of Noble Frank Denny, Deceased.” In support of said motion, appellant cites “Jasper & Chicago Motor Express, Inc. v. Ziffrin Truck Lines, Inc. (May, 1961), 175 N. E. 2d 20,” and says that the Supreme Court therein, in effect, held that the failure to name a party in the assignment of errors is not [321]*321jurisdictional and that the appellant is entitled to amend his assignment of errors.
The Supreme Court, in said Ziffrin case, by a Per Curiam opinion, disapproved our statement in the same case (see 172 N. E. 2d 586), to the effect that the failure to name a party in the assignment of errors is jurisdictional. It may be fairly said, we think, that by its Per Curiam opinion in said Ziffrin case (as reported in said 175 N. E. 2d 20) the Supreme Court evinced its intention of departing from the rule generally adhered to by both the Supreme Court and our court before and after the amendment of Rule 2-6 in 1943, to the effect that the failure to name parties, either as appellants or appellees, is fatal to the appeal on jurisdictional grounds, except where modified by statute. Generally, see the following, which constitute only a few among many: Keiser v. Howard (1927), 199 Ind. 137, 155 N. E. 707; Hayes et al. v. Adams et al. (1943), 221 Ind. 480, 49 N. E. 2d 345; Nordyke & Marmon Co. v. Fitzpatrick (1904), 162 Ind. 663, 71 N. E. 46; Voss v. Balz (1932), 203 Ind. 221, 179 N. E. 552; Second National Bank of Robinson, Ill. v. Scudder (1937), 212 Ind. 283, 6 N. E. 2d 955; Ex Parte Fennig et al., Ex Parte Whipple (1939), 216 Ind. 298, 23 N. E. 2d 678; Hildebrand v. Strickland (1935), 100 Ind. App. 443, 194 N. E. 190; In re Wiles, In re Gibbs (1935), 208 Ind. 271, 195 N. E. 572; Smith v. Holtz (1901), 26 Ind. App. 692, 60 N. E. 728; Jenkins v. Steele (1913), 55 Ind. App. 11, 102 N. E. 139; Estate of Joseph Peden, Deceased v. Noland (1873), 45 Ind. 354; The Estate of Thomas v. Service (1883), 90 Ind. 128; Dallam v. Stockwell’s Estate (1904), 33 Ind. App. 620, 71 N. E. 911; Indiana Construction Material Co. v. Gelopulos (1961), 131 Ind. App. 494; Cook v. Albrecht (1957), 127 Ind. App. 457, 143 N. E. 2d 121; Baugher [322]*322et al. v. Hall, Receiver, etc. (1958), 238 Ind. 170, 147 N. E. 2d 591; Otolski v. Estate of Nowicki (1959), 129 Ind. App. 492, 158 N. E. 2d 296; Wilson v. Kings Estate (1961), 131 Ind. App. 412, 171 N. E. 2d 485; Lafayette Chapter, etc. v. City of Lafayette et al. (1959), 129 Ind. App. 425, 157 N. E. 2d 287; Russell v. Moore (1960), 130 Ind. App. 351, 164 N. E. 2d 670; Allen et al. v. Review Board of Ind. Employ. Sec. Div. (1959), 130 Ind. App. 165, 162 N. E. 2d 689; McArdle v. Board of Zoning Appeals (1960), 131 Ind. App. 5, 167 N. E. 2d 608.
Said Rule 2-6 provides, in part:
“Failure properly to name parties will not be treated as jurisdictional.” (Our emphasis).
In Allmon et al. v. Review Board, etc. et al. (1953), 124 Ind. App. 212, 215, 116 N. E. 2d 115, we held that said quoted part of said rule referred to “misspelling of names, initials or where incorrect given names are listed or other similar means of identification. It does not refer to where there is a total lack or failure on the part of those taking an appeal to name in the assignment of errors the proper party appellants.”
In 1958 our Supreme Court, then composed of the same membership as at present, with one exception, in Baugher et al. v. Hall, Receiver, etc., supra, a Per Curiam opinion, quoted from and impliedly approved the holding in said Alimón case, supra, and noted that “considerable confusion has resulted in the interpretation and effect of failure to name parties on appeal” and that “the situation should now be clarified.” The clarification made thereby was that said Rule 2-6 “does not dispense with the necessity of naming in the assignment of errors ‘all parties to the judgment seeking [323]*323relief by the appeal’ and ‘all parties to the judgment whose interests are adverse to the interests of the appellants.’ ” The appeal was dismissed for the failure of appellant to name the Receiver in the assignment of errors, there being “no amendment sought or made within time to the assignment of errors.” (Emphasis supplied).
Said Baugher case, supra, further held that where appellant fails to name, as appellees, all parties to the judgment who have an adverse interest to appellant, “this court does not acquire jurisdiction of the appeal. . . . This is a requirement which, of course, cannot be waived nor modified by this court.” (Our emphasis).
However, by the Per Curiam opinion in Jasper & Chicago Motor Express, Inc. v. Ziffrin Truck Lines (175 N. E. 2d 20), supra, the Supreme Court did, in fact, modify the rule adhered to in the Baugher V. Hall case, supra, and, in effect, held that the failure to name a party in the assignment of errors is not jurisdictional. The court proceeded further to declare a denial of transfer because “after appellant’s attention was called to the defect in the parties named in the assignment of errors, no application or attempt was made to amend,” as provided in said Rule 2-6. (Emphasis supplied).
The Supreme Court, in said Ziffrin case last referred to, made no observation as to when or within what time the application or petition to amend the assignment of errors with respect to parties should be made or tendered. Should such application to amend be made prior to the expiration of the time provided or allowed for perfecting the appeal? Can it be made at any time before the opinion in the case is handed down? Can it be made as a part of the petition for a rehearing? [324]*324Under said Rule 2-6 does the appellate tribunal possess a discretion as to the time within which the application to amend must be made? If so, can such discretion be varied with respect to each case? By what rule are counsel for the parties to be guided? Shall there exist one rule as to time in the Supreme Court and a different time rule in the Appellate Court? These and other questions remain undetermined.
There is yet to be considered, also, the matter of the influence, if any, of the provisions of Rule 2-3 upon the question at hand. This rule states:
“Distinctions between term time and vacation appeals are abolished. All parties to the record in the trial court shall be parties on appeal without further notice.”
It seems evident that the purpose of the above quoted portion of said Rule 2-3, at the time it was adopted, was to obviate the previous requirement of notices to parties of the intended appeal, since the distinction between term time and vacation appeals was abolished. However, there has appeared some judicial thought tha,t all parties to the record in the trial court are, by virtue of said rule, parties on appeal whether or not they are named in the assignment of errors.
It seems to us that it is not asking too much of an appellant to require that he name in his assignment of errors the necessary parties to the judgment appealed from, as provided in said Rule 2-6. If the parties are numerous and the suit is brought or defended as a class action, the ruling of the Supreme Court in King et al. v. City of Bloomington (1959), 239 Ind. 548, 159 N. E. 2d 563, should be followed. If by inadvertence, mistake, clerical error, or other excusable cause, properly made evident by appellant’s veri[325]*325fied petition, it appears that the name of a necessary party does not appear in the assignment of errors, and the appellant has proceeded promptly after learning or becoming cognizant of such omission, we think the court of appeal has the inherent power to authorize the appellant, upon due notice given by him to the opposing parties or their attorneys of record, to amend the assignment of errors by naming the omitted party in such assignment of errors. Since the Supreme Court has determined, see the Ziffrin case (175 N. E. 2d 20), supra, that the failure to name a party in the assignment of errors is not jurisdictional, it would seem logically to follow that the time for the filing of an application to amend the assignment of errors, in respect to the parties, should be determined not by the expiration of the time allowed for the perfection of the appeal but by the circumstances of the particular case and the good faith of and promptness of action by the appellant as exhibited by the allegations of his verified petition or application for the right to amend.
In the present case, the named appellee, by counsel, as stated above, filed a petition for extension of time in which to file brief and stated therein that such brief “when filed, will be on the merits”, and that “this court has jurisdiction of this appeal”. That extension of time was granted by us and said appellee’s brief has been filed. Under the prevailing authorities, the appellee thereby waived his right to petition for a dismissal of this appeal upon the ground of a defect in parties. McClure v. Federal Land Bank of Louisville (1938), 213 Ind. 644, 14 N. E. 2d 101, 14 N. E. 2d 537; Industrial Machinery Co. Inc. v. Roberts (1947), 225 Ind. 1, 5, 72 N E. 2d 223. Under this circumstance we would be fully justified by the authorities in denying the motion to dismiss. However, we feel [326]*326that the question is of such moment that a definite position as to the right to amend the assignment of errors by adding omitted parties to the same should be now taken.
Appellant’s motion to amend the assignment of errors was filed within two (2) days after appellee’s aforesaid petition to dismiss. While we do not consider that appellant’s verified motion is as complete and sufficient as it should be, yet, it clearly appears therefrom that the omission to name “Gladys Mae Denny, Executrix of the Estate of Noble Frank Denny, Deceased,” as a party in the assignment of errors, occurred by reason of the alleged “inadvertence and excusable neglect” of the appellant.
It is the disposition of our court to determine cases upon their merits where it is possible so to do under the rules. The granting of appellant’s motion will cause harm to no one.
The named appellee’s motion to dismiss this appeal is denied. Appellant’s motion to amend his assignment of errors, as prayed for is granted, such amendment to be made within the next ensuing ten (10) days.