Frawley v. Hoverter

Gilfillan, C. J. The action was brought, under the statute, to determine adverse claims to real estate, the plaintiff alleging title in himself, and that the lands were vacant and unoccupied. The defendant Kreider answered, denying plaintiff’s title, and alleging himself to be the owner in fee of an undivided seven twenty-fourths of the land. The other defendants made default, and did not appear in the action. There was a trial of the issue between plaintiff and Kreider, on which the proof of title made by plaintiff was of a sale for taxes under a judgment for the delinquent taxes for the year 1881, but there was no proof of the service of the notice to redeem, required by Laws 1877, c. 6, § 37. The court found that plaintiff was. the owner in fee of the land, and entitled .to judgment in his favor, and it was accordingly entered. Kreider proposed and procured to be settled a case and bill of exceptions, and all the defendants appealed from the judgment. It is conceded that as to Kreider the judgment must be reversed. But no error as to the other defendants appears upon the record. They cannot rely to show such error on the ease and bill of exceptions, for it was not settled on their behalf, and it purports only to set forth the evidence and rulings on the trial of the issue between the plaintiff and Kreider. The case against the other defendants; could have no place in a case and bill of exceptions proposed and pro [380] ■cured to be settled by him alone, and in which they did not join. They could not be bound, nor as to them could the plaintiff be bound, by Ereider’s case and bill of exceptions. The judgment must be reversed as to the defendant Ereider, and •affirmed as to the other defendants.