Hernly v. Pierce

Hadley, J. This was a proceeding in the court below to modify a decree which was entered in a suit on notes and to foreclose mortgages in favor of appellee Pierce against his eoappellees and appellant and Lemuel J. Hernly. The judgment against Lemuel J. Hernly was only a personal judgment. He neither had nor claimed any title to the land involved. All parties to the original suit were parties to the proceeding to modify the decree thereunder. It appears that since the decree appealed from was entered, and prior to perfecting the appeal, Lemuel J. Hernly died intestate, leaving appellant and appellees, except Pierce, Day and May, as his only heirs. Appellee Pierce has moved to dismiss this appeal, for the reason that the personal representative of Lemuel J. Hernly is not made a party. This is a vacation appeal. In such an appeal one of the judgment defendants may appeal by mak 604 ing all coparties parties to the appeal. The obligation of the judgment was against Hemly’s estate, and not against his heirs, and his personal representative should have been made a party to this appeal. Sohl v. Evans (1902), 29 Ind. App. 634; Western Union Tel. Co. v. Adams (1902), 28 Ind. App. 420. Appeal dismissed.