Crane v. Hensler , 196 Ind. 341 ( 1925 )

ON MOTION TO DISMISS. Appellees, the plaintiffs below, filed a complaint to contest the will of Richard C. Crane, deceased, alleging that he was of unsound mind, that the will was unduly executed, and that its execution was procured by undue influence, and named as defendants all the other legatees under the will, which included the appellants and thirteen other persons not made parties to this appeal. Appellants were children of the testator by his last marriage, while the appellees and the thirteen defendants who did not join in taking the appeal were his children and grandchildren, the issue of a former marriage. The will devised all the testator's real estate to appellants, and also bequeathed to them all the residue of his personal property, after the payment of a small legacy to each of the plaintiffs (appellees) and each of the thirteen defendants not made parties here. No cross-complaints were filed, but the thirteen defendants other than appellants filed answers admitting that the allegations of the complaint were true, and consenting that the will be set aside, but asking that no costs be taxed against them. Four of said thirteen defendants who so answered were called as witnesses for the plaintiff, and each testified that the testator was of unsound mind.

A verdict in favor of the plaintiffs that the execution of the instrument in question was procured by undue influence and that it was not the last will of Richard C. Crane was returned, on which the court rendered a judgment in general terms that the instrument is not such last will. Appellants perfected a term appeal, naming in their assignment of errors only the plaintiffs below as appellees and themselves as appellants. Appellees ask to have the appeal dismissed because the thirteen defendants who filed answers admitting the allegations of the complaint, and more especially the four of them who testified as witnesses for the plaintiffs, were not named as appellees in the assignment of errors.

The statute expressly provides that whenever a part of any number of coparties against whom a judgment has been rendered shall take a term appeal, it shall not be necessary for the 1. other coparties who do not join in taking it to be made parties to such appeal, either as appellants or appellees. § 706 Burns 1926, § 675 Burns 1914, Acts 1895 p. 179.

Whether or not the parties below were coparties or adversary parties must be determined from a consideration of the pleadings, the verdict or finding, and the judgment. And 2, 3. codefendants who did not file cross-complaints or other adversary pleadings against each other, but only filed answers to the complaint, and against all of whom the plaintiffs recovered a verdict and judgment for all the relief demanded by the complaint, did not cease to be coparties because some of them may have been pleased with the result, or may have made no defense, or may have assisted the plaintiff to win. Michigan Mutual, etc., Co. v.Frankel (1898), 151 Ind. 534, 50 N.E. 304. Therefore, it was not necessary for appellants, in taking a term appeal, to name as appellees any of their codefendants who had neither joined nor tendered any issue as against them, but had only filed answers of disclaimer to the complaint. So far as the case of SecurityTrust Co. v. Myhan (1917), 186 Ind. 391, 114 N.E. 410, may hold the contrary, it is overruled.

The motion to dismiss the appeal is overruled.

Townsend, J., absent.

Filed October 10, 1923.