West v. Goodwin

81 N.E. 734, 41 Ind. App. 333, 1907 Ind. App. LEXIS 154

• Court: Indiana Court of Appeals
• Decided: June 25, 1907
• Docket: No. 6,294
• Status: Published

Opinion

Watson, P. J.

This appeal is taken from a judgment below, rendered against the appellant John T. West, for the partition of certain real estate in Tipton county, and for the sum of $231.45 damages for rental from said appellant in favor of the appellees, Franklin Goodwin, Gideon Jones, Elmeda Jones, George Jones, Felix Goodwin, William Goodwin, Sarah Moats, Mattie Falls, Mary Gerke, Agnes White and Charles Goodwin.

The record in this case discloses the fact that in the separate assignment of errors of the appellants, John T. West and Sarah M. West, or the joint assignment of errors of said appellants, none except Franklin Goodwin is named .as appellee. A motion to dismiss this appeal is made by the appellees, on the ground that the court has no jurisdiction to hear and determine the merits of this cause for the reason that all the parties to the final judgment are not before this court. It is necessary that all the appellees should have been named, either in the caption or the body of the assignment of errors. This being an appeal from the judgment against the appellants and in favor of Franklin Goodwin and others above named, the court does not acquire jurisdiction in this appeal so as to pass upon the merits of the cause, unless all the parties in whose favor the judgment below was rendered, or who would be affected thereby, are named and set out in the assignment of errors. Paxton v. Tyler (1898), 20 Ind. App. 455; Wilkinson v. Vordermark (1904), 32 Ind. App. 633; Holderman v. Wood (1905), 34 Ind. App. 519; Kemp v. Prather (1905), 36 Ind. App. 382; Lowe v. Turpie (1897), 147 Ind. 652, 37 L. R. A. 233; Abshire v. Williamson (1898), 149 Ind. 248; Smith v. Fairfield (1901), 157 Ind. 491; Gunn v. Haworth (1902), 159 Ind. 419; Ex parte Washington Nat. Bank (1904), 163 Ind. 476; Elliott, App. Proc., §323; Ewbank’s Manual, §126.

In the case of Abshire v. Williamson, supra, the court said: “It is a fundamental rule in jurisprudence that before any court will proceed to adjudicate upon the subject-matter it must first acquire jurisdiction over all the parties whose rights or interests will be necessarily affected by its judgment. Not having the power, under the facts, to decide this cause as an entirety, unless all of the necessary parties are brought into court, as required by law, therefore we will not violate the well-settled rule which forbids the decision of a case in fragments, by asserting authority to make a partial decision in this case, which must be regarded as an entire and indivisible cause, but may, and properly should, dismiss the appeal on our own motion. ’ ’

The motion must be sustained, and the appeal is therefore dismissed.