Bruce v. Myers , 34 Ind. App. 664 ( 1905 )

Comstock, C. J.

Appellant sued Samuel R. Waters, as principal, and appellees David A. Myers and Isaac Russell, as sureties, on a builder’s bond. Waters filed a separate answer, and, with Myers and Russell, a joint answer to tbe complaint.

1. Tbe cause was put at issue by tbe reply of appellant to tbe separate answer of Waters, and to tbe joint answer of Waters, Myers and Russell. Tbe trial resulted in a judgment in favors of Waters, Myers and Russell against Margaret Bruce for costs. The judgment is in the following language: “It is therefore considered, ordered, adjudged and decreed by the court that the plaintiff, Margaret Bruce, take nothing by her action herein, and that the defendants recover of and from the plaintiff' their costs and charges herein paid, laid out and expended, taxed at $......” This judgment was joint in favor of all the defendants.

2. Erom this judgment Margaret Bruce appeals, without making Waters a party to the appeal. Eor this reason appellees move to dismiss the appeal. It is a well-established rule in appellate proceedings that all the parties to and affected by the judgment appealed from must be actually or constructively included in the appeal. The rule is founded upon the principle that those only before the Appellate Court are bound by the appeal. Without this rule, two or more appeals might be had from the same judgment, and with only limited jurisdiction over the subject-matter of the appeal. Hunderlock v. Dundee Mortgage, etc., Co. (1882), 88 Ind. 139; Paxton v. Tyler (1898), 20 Ind. App. 455; Elliott, App. Proc., §138; Bozeman v. Cale (1894), 139 Ind. 187; Moore v. Franklin (1896), 145 Ind. 344; Gurley v. Embree (1894), 137 Ind. 82; Capital Nat. Bank v. Reid (1900), 154 Ind. 54; McClure v. Shelburn Coal Co. (1897), 147 Ind. 119.

3. Appellant opposes the motion to dismiss the appeal, upon the ground that Waters is not a necessary party to the appeal, because (a) during the trial below the parties, including these appellees, agreed in open court that said Waters, defendant below, had been released by a proper discharge in bankruptcy for all liability on the bond in suit prior to- the institution of the suit; (b) the judgment was several as to- the defendants. The form of the judgment hereinbefore set out shows it to be joint. Waters, in a separate answer to the complaint, pleaded his discharge in bankruptcy. In a joint paragraph of answer Waters, Russell and Myers alleged that there was no consideration to support the execution of the bond in suit. The cause was tried upon all the issues. It resulted as heretofore stated. The purport of appellant’s argument is that Waters is without interest, by reason of his discharge in bankruptcy. The same point was made in Moore v. Franklin, supra. We quote from the opinion at page 346: “It is said, by counsel for appellant, that the whole record shows that Jacob Coble has no interest in the judgment, and therefore that he is not a proper party. An examination of the record does not enable us to come to this conclusion; but even if it did, we do not think that would justify us in overlooking the omission of his name as a party to the judgment, a party, too, who is actually named by the court in its decree.” There is no escape from the conclusion that Waters is affected by the judgment appealed from, and should be a party to the appeal.

4. Appellant claims that the motion to dismiss is not well taken: (1)-Because the notice served on appellees does not comply with rule fifteen of this court, in that it does not state the time fixed for its hearing; (2) because no notice with proof of service was attached to the motion when the latter was presented to the clerk for filing; ( 3) the third specification of the motion is not accompanied by any verification as required by rule fourteen of this court. These objections are all fairly disposed of by the fact that appellant has appeared to the motion and filed her brief in opposition thereto, and she has not in any way been deprived of any right or been prejudiced by the manner of the presentation of the motion.

Appeal dismissed.