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139 Ind. 571

Benbow v. Garrard

Indiana Supreme Court

Decided December 20, 1894

Indiana Supreme Court · decided 1894-12-20

<p>Appeal. — Dismissal of. — Defect of Parties Appellant. — All parties entitled to appeal, i. e., all parties against whom judgment is rendered, must be brought before the appellate tribunal as appellants in the same appeal, and notice served on them, or the appeal will be dismissed.</p>

Relies on Gregory v. Smith · Gourley v. Embree · Hadley v. Hill

Good law ✅— No negative treatment on recordhow we know

Decided 1894-12-20

How this case has been cited

Cited by 24 later decisions — most recently May 1980

1 federal appellate · 22 state decisions

801894190019101920193019401950196019701980decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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McCabe, J.

¶1The appellant brought suit -in the circuit court for partition of certain described real estate in Delaware county, against the appellees, William L. Garrard, Riley Garrard, George M. Garrard, Frank Prigg, Edna M. Prigg, and Herbert L. Benbow. The three Garrards filed a cross-complaint against the plaintiff, John C. F. Benbow, and their codefendants, Frank Prigg, Edna M. Prigg, and Herbert L. Benbow, claiming to own all the real estate sought to be parted in the original complaint, and seeking to quiet their title thereto. Issues were formed on the cross-complaint, a trial of which resulted in a finding and judgment in favor of said Garrards on their cross-complaint quieting the title of all of said real estate in them, and a judgmeut against all the defendants to the cross-complaint for costs in favor of the cross-complainants.

¶2The original plaintiff, John O. F. Benbow, is the only one of the coparties and joint judgment defendants who appeals. Hé has not-made any of the other joint judgment defendants parties to this appeal as-either appellants or appellees. The statute requires them to be made parties. 1 Burns R. S. 1894, section 647 (R. S. 1881, section 635.)

¶3And we have recently held that they must be made co-appellants and notice served on them, or the appeal must be dismissed for want of jurisdiction. Gregory v. Smith, 139 Ind. 48.

¶4We there held that coparties mean coparties to the judgment, that is, all the parties against whom the judgment is rendered. See Hadley v. Hill, 73 Ind. 442.

¶5To the same effect are Wood v. Clites, 39 N. E. Rep. 160, and Gourley v. Embree, 137 Ind. 82; State v. Hodgin, 139 Ind. 498.

¶6All the parties entitled to appeal must be brought before this court as appellants in one and the same appeal, *573and notice served on them, or the appeal will be dismissed. Gourley v. Embree, supra.

Filed Dec. 20, 1894.

¶7The statute only authorizes one appeal from a judgment. Therefore, if the terms of the statute are not complied with in bringing before this court all the co-parties entitled to appeal by making them coappellants, thus affording them an opportunity to assail the judgment against them, this court has no jurisdiction to hear and determine the appeal in the absence of the other co-parties to the judgment. Gregory v. Smith, supra; Wood v. Clites, supra; Gourley v. Embree, supra;Elliott’s App. Proced., section 144.

¶8The appeal is, therefore, dismissed.

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