Nye v. Kamm

212 N.E.2d 397, 139 Ind. App. 687, 1965 Ind. App. LEXIS 492

• Court: Indiana Court of Appeals
• Decided: December 16, 1965
• Docket: No. 20,345
• Status: Published

Opinions

Per Curiam.

— This appeal is brought by plaintiffs below, who complain of the trial court’s ruling in favor of defendant-appellees’ plea in abatement against appellants’ third amended complaint. Said complaint prayed for a discovery, inspection and accounting concerning a family trust, the management of which is in the control of the appellees.

Our purpose at this instance is not to decide the merits of the cause below, but merely to rule upon appellees’ motion to dismiss appeal or in the alternative to affirm the judgment of the lower court.

We see the necessity to mention but two of the errors alleged in said motion — failure to cite authorities, as required by Rule 2-17, and failure to properly name party appellee as required by Rule 2-6 of the Supreme Court.

We feel that the motion has merit on both points and that it must be sustained.

The argument portion of appellants’ brief does not cite authorities as required by Supreme Court Rule 2-17. However, we feel that the failure to properly name parties and substitute a representative for several of the named appellees, several of whom died after institution of the action below but prior to judgment, is fatal to this appeal inasmuch as the law is clear that such a failure precludes jurisdiction in the Appellate Court to entertain the appeal. Swasey v. Hudson Lake Resorts, Inc. (1965), 136 Ind. App. 675, 204 N. E. 2d 666; Chilcote v. Jordan (1936), 210 Ind. 587, 4 N. E. 2d 186.

Rule 2-6 provides: “In the title to the assignment of errors all parties to the judgment seeking relief by the appeal shall be named as appellants, and all parties to the judgment whose interests are adverse to the interests of the appellants shall be named as appellees.”

For the above reasons, the appeal is dismissed.