Kirby v. Holmes

Stuart, J. The main facts of this case will be found in the opinion delivered when it was here on appeal from the Decatur Probate Court, May term, 1850. 2 Ind. R. 197. J. S. Scobey, for the appellants. J. Hyman, for the appellees. In the Probate Court the parties all appeared to the suit. After it was reversed and remanded for a new assessment of damages, the Common Pleas issued process for the defendants. But this was superfluous. The parties were still in Court as they stood at the time the damages were erroneously assessed. The statute pointing out when a cause reversed and remanded shall stand for trial, does not seem susceptible of any other construction. R. S. 1843, p. 732, s. 321. At the re-assessment of damages, the record notices the appearance by attorney of the appellants, Kirby and Stewart, but is silent as to the other defendants. The omission to default the infant defendants, and take judgment against them for want of a plea, is a mere defect in form, and can not be assigned for error. 2 Ind. R. 197. As to the adult defendants there was a plea in bar filed and issue joined. They could not be defaulted. Whether they were called and failed to appear is not shown. In such case the plaintiffs could assess the damages in the same manner as if the defendants had all appeared and defended the cause. Harris v. The Muskingum Manufacturing Company, 4 Blackf. 267, and the authorities cited. And the judgment against the “defendants” will be presumed to be against all the defendants in the cause. We think the jury was impanneled substantially in accordance with the second clause of section 17, of chapter 39, R. S. 1843. The appeal is taken by Kirby and Stewart alone. All the defendants should have joined, or there should have been a summons and severance. Kain v. Gradon, 6 Blackf. 138 (1). The appeal must be dismissed. Per Curiam. The appeal is dismissed with costs. Footnotes [(1)] The provision in tlie B. S. 1852 in relation to the parties to appeals, is as follows: “A part of several co-parties may appeal, hut in such case they must serve notice of the appeal upon all the other co-parties, and file the proof thereof with the clerk of the Supreme Court. Unless they appear, and decline to [35] join, they shall be regarded as haring joined, and shall be liable for their due proportion of the costs. If they decline to join, their names may be struck out, on motion, and they shall not take an appeal afterwards, nor shall derive any benefit from the appeal, unless from the necessity of the case, ex-eept persons under legal disabilities.” 2 R. S. 1852, p. 158, s. 551.