Koons v. Burkhart

113 N.E. 751, 78 Ind. App. 691, 1916 Ind. App. LEXIS 260

• Court: Indiana Court of Appeals
• Decided: October 4, 1916
• Docket: No. 9,561
• Status: Published

Opinion

McNutt, J.

— The appellee has filed a motion to dismiss this, a vacation, appeal for the following reasons: (1) That the only error assigned by each appellant is the overruling of their separate motions for a new trial; and (2) that one of said appellants did not file any motion for a new trial, and that said appellant is not otherwise properly in court.

It is contended by appellee that, in as much as said appellant, who filed no motion for a new trial, must fail in his appeal, therefore, he cannot appeal, and must be treated by the other appellants as a co-appellant, and notified, as provided by statute in such cases.

We cannot concur in the view entertained by appellee’s counsel. A party’s right to appeal in no way depends upon his right to recover in this court.

It is evident, from the record in this case, that the appellant, Milford G. Koons, must fail in his appeal, but such failure cannot affect the right of the other appellants to have their assignments of error considered on their .respective merits; otherwise, every appeal would have to be dismissed if it appeared that the judgment must be affirmed ás to any appellant.

The motion to dismiss the appeal is overruled.