Wilson v. Estate of WL Kings

170 N.E.2d 63, 131 Ind. App. 412, 1960 Ind. App. LEXIS 187

• Court: Indiana Court of Appeals
• Decided: November 15, 1960
• Docket: 19,257
• Status: Published

Opinions

Myers, J.

This cause arises as the result of an amended claim having been filed by appellant, Leola Wade Wilson, against the named appellee, Estate of W. L. Kings [Deceased], in the Delaware Circuit Court of Delaware County, Indiana. A demurrer was filed to the amended claim on the ground that it did not state facts sufficient to consitute a cause of action for claim against the estate. The court sustained this demurrer and entered judgment thereon when appellant failed to plead over. This appeal is from that judgment.

The transcript and assignment of errors were duly filed with the Clerk of this Court on November 17, 1958. Appellant’s brief was filed on January 15, 1959. Appellee’s answer brief was filed March 31, 1959, and appellant’s reply brief was filed on May 19, 1959. Appellee’s brief is on the merits.

Upon examining the assignment of errors as filed in the transcript, we find the caption reads as follows: “Leola Wade Wilson Appellant vs Estate of W. L. Kings Appellee.”

An examination of the record reveals that a “Merchants Trust Company, executor of the estate of W. L. Kings, deceased,” filed a demurrer to the amended claim and requested entry of judgment after the court had sustained it. Thus, there was a personal representative of the estate at the time of entry of judgment. This personal representative is not named as a party to this appeal in the assignment of errors.

It has been held many times by the Supreme and Appellate Courts of Indiana that the estate of a decedent cannot be a party to an action without a representative. The mere naming of the estate as the party appellee is insufficient, as an estate is not a legal entity. The effect is the same as if no party appellee had been named in the assignment of errors. Otolski v. Estate of Nowicki (1959), 129 Ind. App. 492, 158 N. E. 2d 296; Carr v. Schneider’s Estate (1943), 114 Ind. App. 149, 150, 51 N. E. 2d 392; Dallam v. Stockwell’s Estate (1904), 33 Ind. App. 620, 71 N. E. 911; Guernsey’s Estate v. Pennington (1904), 33 Ind. App. 119, 70 N. E. 1008; The Estate of Joseph Peden, Deceased v. Noland (1873), 45 Ind. 354; The Estate of Thomas v. Service (1883), 90 Ind. 128; The Estate of Wells v. Wells (1880), 71 Ind. 509; Dunn v. Estate of Evans (1902), 28 Ind. App. 447, 63 N. E. 36.

There is a fatal defect in the failure to name the personal representative of the deceased in this case as a ¡party appellee. This is jurisdictional and obliges us to dismiss the appeal. Otolski v. Estate of Nowicki, supra; Baugher et al. v. Hall Receiver, etc. (1958), 238 Ind. 170, 147 N. E. 2d 591; Lafayette Chapter etc. v. City of Lafayette (1959), 129 Ind. App. 425, 157 N. E. 2d 287; Flanagan, Wiltrout and Hamilton’s Indiana Trial and Appellate Practice, Assignment of Errors, Ch. 47, §2404, pp. 172, 173.

There was no motion to dismiss filed herein. However, when no jurisdiction exists, the appeal may be dismissed by the court upon its own motion with out any suggestion from the parties. Otolski v. Estate of Nowicki, supra.

Appeal dismissed.