State Ex Rel. Hurd v. Davis

ON PETITION FOR REHEARING. In a petition for rehearing, respondent among other things insists that three of the defendants to relator's petition in respondent's court in cause No. 9241 (Probate) on May 26, 1948 voluntarily entered a general appearance by their attorney, Everett Warner, and filed an oral motion to remove Virginia Hurd as next friend of relator. He avers that this attorney for said clients at that time also filed an oral motion to dismiss the amended petition. He avers that within a week thereafter both motions were filed in writing. The record now shows that the written motions mentioned were filed June 2, 1948, one week after the mandamus action was filed in this court. In his rehearing brief relator insists that the motions mentioned were not filed until June 2, 1948. This confusion of the parties may have been occasioned by the peculiar method of filing — first oral, later in writing — or it may have been caused by the order impounding the records and papers.

If there has been a general appearance of these three defendants by the filing of the motions mentioned, no summons or notice is now required for them, and the opinion is 15. modified accordingly with respect to notice for said three defendants.

However, in an action seeking to give the petitioner rights in a decedent's estate, it is indispensably necessary to bring before the court all the parties who under the law may be 16. entitled to share in its distribution, the administrator or executor, the heirs and devisees, whoever they may be, must necessarily be brought in. 26 C.J.S., Descent and Distribution, § 80, p. 1125; Ex rel. Schumacher v. AdamsCircuit Court (1947), 225 Ind. 200, 73 N.E.2d 689; In re: DavisEstate (1940), 38 Cal. App. 2d 579, 101 P.2d 761, 102 P.2d 545; Smith v. Smith (1899), 13 Col. App. 295, 300, 57 P. 747; See also Miller v. Bode, Admr. (1923), 80 Ind. App. 338, 344, 139 N.E. 456.

It has been said in such an action or proceeding each party except the administrator or executor, is an independent actor and is a plaintiff as against all others whose claims are adverse, without regard to whether he is styled as plaintiff or defendant.

Respondent's petition for rehearing is denied.

Note — Reported in 82 N.E.2d 87.