Ledbetter v. Winchel

40 N.E. 1065, 142 Ind. 109, 1895 Ind. LEXIS 141

• Court: Indiana Supreme Court
• Decided: June 5, 1895
• Docket: No. 17,457
• Status: Published

Opinion

McCabe, C. J.

The appellee Winchel sued the appellants and her co-appellee, Samuel Moore, to foreclose a mortgage on certain described real estate in Grant county. Moore was defaulted. He was made a defendant because it was alleged he held a judgment lien on the mortgaged premises junior to that of the plaintiff’s mortgage.

The only answer filed by appellants was a plea in abatement, the issues formed upon which were tried by the court, resulting in a finding thereon against appellants, and they failing to plead over, there was a decree of foreclosure against all the defendants, including Moore. It is assigned for error that the trial court overruled appellants’demurrer to the complaint, overruled their motion for a new trial, and their motion to modify the decree. Moore, one of the defendants against whom the decree is rendered, is made an appellee and not a co-appellant with the appellant.

Filed June 5, 1895 ; petition to reinstate overruled September 24, 1895.

He was entitled to appeal from the judgment, and being a co-party to the judgment with the appellants he should have been joined as a co-appellant with them, and notice served on him as such which is an unofficial notice. Burns R. S. 1894, section 644, R. S. 1881, section 635; Gregory v. Smith, 139 Ind. 48; Wood v. Clites, 140 Ind. 472; Benbow v. Garrard, 139 Ind. 571. No such notice was served on him.

The appeal is therefore dismissed.