Superior Realty & Building Co. v. First National Bank , 115 Ind. App. 639 ( 1945 )

OPINION ON MOTION TO DISMISS The appellant instituted this suit by a complaint in three paragraphs and the appellees here were the defendants below. The first paragraph of the complaint seeks an adjudication of the interests of the appellees in certain real estate and asks that the same be declared a mere lien thereon for the payment of money, that the amount thereof be fixed and the appellant allowed to redeem the said real estate by the discharge of such lien. The second paragraph of complaint seeks to quiet the appellant's title to said real estate, and the third paragraph charges the appellees with the unlawful conversion of the real estate involved and asks damages therefor. The appellee, The First National Bank of Chicago, is not a resident of Indiana, and notice of the pendency of the suit was given it by publication as provided by statute. Said appellee appeared specially and filed a plea in abatement to the third paragraph of complaint on the theory that it is an action in persona and seeks a personal judgment against the resident of the State of Illinois under whom the court has acquired no jurisdiction for such purpose. Issues were joined on said plea, a trial was had and the court found for the appellee, The First National Bank of Chicago, and rendered judgment that the appellant's cause of action, as pleaded in the third paragraph of its complaint, be abated as to said appellee. A new trial was denied and the appellant appealed. The original cause is still pending in the Porter Circuit Court and is undisposed of as to all issues joined on the first and second paragraphs of complaint and as to all issues joined on the third paragraph of complaint except as to said plea in abatement. The appellee, The First National Bank of Chicago, now asks us to dismiss this appeal on the grounds that there is no final judgment from which an appeal can be taken and that it is an effort on the part of the appellant to appeal its case in installments in that the order appealed from is and can be but a part of an eventual final judgment.

We recognize it to be the general rule that "a final judgment is one that at once disposes of all the issues, as to all the parties, involved in the controversy presented by the 1, 2. pleadings, to the full extent of the power of the court to dispose of the same, and puts an end to the particular case as to all of such parties and all such issues."Neyens v. Flescher (1907), 39 Ind. App. 399, 79 N.E. 1087. This rule, however, does not "preclude an appeal from a judgment or decree which judicially determines all of the issues presented by a collateral or auxiliary proceeding and leaves nothing to be done therein except the ministerial act of executing such judgment or decree as rendered." Frankfort Construction Co. v. Sims (1916), 185 Ind. 71, 73, 113 N.E. 298; Hamrick, Trustee v.Loring (1897), 147 Ind. 229, 231, 45 N.E. 107. The trial of the issues joined on a plea in abatement is collateral to the main proceedings. Separate and distinct issues of fact are tried and determined independently of the cause of action set out in the complaint and which cannot proceed to determination until the plea in abatement has been disposed of.

The appellees' second contention is fully answered by Rule 2-3, 1943 Revision, which provides in part as follows: "No appeal will be dismissed as of right because the case was not finally 3. disposed of in the court below as to all issues and parties, but upon suggestion or discovery of such a situation the appellate tribunal may, in its discretion, suspend consideration until disposition is made of such issues, or it may pass upon such adjudicated issues as are severable, without prejudice to parties who may be aggrieved by subsequent proceedings in the court below."

This rule vests discretion in this court to do two things: (1) Suspend consideration of this appeal until the other issues are disposed of, or (2) pass upon the adjudicated issues presented by this appeal. The second alternative seems the more logical in the present case and best calculated to simplify the proceedings on the issues in the main case.

It has not been our custom nor are we required to file written opinions on motions to dismiss appeals where the same are overruled. We do so in this instance only because the motion herein involves the construction of the Rules on a question that heretofore has had no expressed judicial interpretation.

The motion to dismiss is overruled.

NOTE. — Reported in 56 N.E.2d 855.