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Gregory v. Smith et al.
permits but one assault to be made upon it by way of Appeal. Elliott's App. Proced., section 138, and cases there cited.
It has also been held that this court can not disturb a joint judgment, unless all the coparties affected by it are properly brought before this court. Garside, Exx., v. Wolf, 135 Ind. 42.
It is true that all the coparties to the joint judgment below have been made parties to this appeal; some of them as both appellants and appellees, and the rest of them as appellees only. They have all been served with the ordinary process of this court for bringing in appellees. Waiving the question as to the kind of notice, we are led to inquire what such appellees could have done had they appeared in this court and asked to join in the appeal? They were not made appellants, and therefore could not control or amend the assignment of errors so as to become joint appellants any more than a defendant could amend or control the complaint. The only good the notice to them of the appeal could do would be for them to make an effort to be allowed to join therein. Because we have seen that it is only a coappellant who is regarded by the statute as joining in the appeal by failure to appear and declining to join. An appellee is not regarded as joining in an appeal by his failure to appear and declining to join. This is so for the same three reasons why this court would refuse to allow an appellee to join in an appeal, namely: 1, that no court can enable a party to both assail and defend a judgment at the same time, and, 2, a party can not be both plaintiff and defendant in the same cause; and, 3, the party taking the appeal has the exclusive right to determine whom he will associate with himself as a coappellant. This court can only visit upon him the consequences of his failure to make the proper parties appellants when proper and sea
Gregory v. Smith et al.
sonable objection is made to such failure. Therefore, making a part of the coparties against whom judgment below was rendered appellees on this appeal has clothed them with no more rights, and created no more liabilities against them than if they had not been made parties at all. If they had not been made parties no notice of appeal could have been served upon them, and without such notice the appeal would be dismissed. Herzogg v. Chambers, 61 Ind. 333; People's Savings Bank, etc., v. Finney, 63 Ind. 460; Cranmore v. Bodine, 65 Ind. 25; Hunter v. Chrisman, 70 Ind. 439; Couch v. Thomas, 71 Ind. 286; Hunderlock v. Dundee, etc., Co., 88 Ind. 139. The reason of this rule is that this court can not disturb the judgment as to all or a part of the joint judgment defendants unless they are all before the court so as to make the adjudication binding upon all of them. It was within the power, and was the duty of those of the joint judgment defendants who desired to appeal, to make all the joint judgment defendants coappellants in their assignment of errors, and serve notice of the appeal on them, file it and the proof of such service with the clerk. Then, no matter whether they declined to join. or not, the appeal so presented and determined would have been a complete bar to any other appeal by any other of such joint judgment defendants. But the present appeal can not bar that part of the joint judgment defendants who are not made appellants but are made appellees. This is so because those of the joint judgment defendants who have not been made appellants, though made appellees, have neither appealed from the joint. judgment nor had an opportunity of joining in an appeal therefrom. And as there can be but one appeal from a joint judgment, the appeal is not here in such a manner as to authorize this court to hear it until all the joint judgment defendants have been brought before the court
Gregory v. Smith et al.
in such a way as to make the adjudication binding upon all of them.
The appellee Smith, who recovered the joint judgment below, has a right to insist that this appeal shall not be heard until all the joint judgment defendants are so brought before this court as to bind them by the result. Hence he moves to dismiss the appeal which is his only remedy.
It is true that a joint assignment of errors must be good as to all that join in it. That is, the ruling decision or decisions thus jointly assigned must be injurious to all that join in the assignment thereof as error, or the assignment will be good as to none, though such ruling or decision was reversible error as to some of the parties so joining in such assignment. Elliott's App. Proced., sections 314, 318, 401, and authorities there cited.
The rule, however; that requires all joint judgment defendants below to be made co-appellants in this court, does not prevent either of them from separately assigning any one or more rulings as error. The separate assignment of error by either or each of them does not necessitate a change of the parties to the appeal as counsel seems to suppose. All the appellants remain the same, and all the appellees remain the same.
The parties seeking to prosecute this appeal, being only a part of the coparties to the joint judgment below, having failed to bring before this court all the joint judgment defendants below by making them coappellants so as to bind them by the result, they have failed to comply with the statute. The motion of the appellee Smith to dismiss the appeal must be sustained.
The appeal is therefore dismissed
Filed Oct. 18, 1894.
Bowles v. Trapp et al.
BOWLES v. TRAPP ET AL.
MARRIED WOMAN.-Contract of Suretyship.-Not Bound by Form of.— Facts Control.-A married woman is not bound by the mere form of the contract into which she enters, but the facts must control in determining the question whether the wife or her property is surety for another.
SAME.-Promissory Note.-Surety for Her Husband.-Sole Maker of Note.-Defense.-Where a person loaned money on the individual note of the wife, retaining part thereof in payment of the husband's debt, and paying the remainder to the husband, knowing it was loaned to be applied and appropriated by him to his sole use and benefit, and knowing that the words in the note: "For my sole use and benefit only," as well as the form of the contract, did not express the transaction, such facts constitute a complete defense to an action on the note, against the wife, by the payee.
From the Dearborn Circuit Court.
N. S. Givan, for appellant.
G. B. Goodhart and J. K. Thompson, for appellees.
DAILEY, J.-The appellant brought his action in the Dearborn Circuit Court, to recover on a note executed by the appellee Anna Trapp, and to foreclose a mortgage given by the appellees to secure the payment of said note. The appellee, Anna Trapp, alone answered the complaint in three paragraphs, the first being a plea of non est factum; the second a plea of coverture, and that she signed the note sued on as surety for her coappellee, Charles P. Trapp, and not otherwise, and the third a general denial. A separate demurrer addressed to the first and second paragraphs of her answer was 'sustained as to the first, and overruled as to the second. By leave of court, Mrs. Trapp amended the first paragraph thereof. To the judgment of the court in overruling the demurrer to the second paragraph, the appellant at the time excepted.
Bowles v. Trapp et al.
There was a reply to this answer of the appellee Anna Trapp, in two paragraphs, the first a general denial, and the second alleged that the money received on account of said loan by Charles P. Trapp was obtained by him as the agent of the defendant Anna Trapp, for her use and benefit, and by her authority and direction. The case was submitted to the court for trial, and after hearing the evidence, it found for the appellees. The appellant then filed his motion for a new trial, which was overruled by the court, and he excepted. Thereupon the court rendered judgment for the appellees, and from it this appeal is taken. The appellant assigns two
1. The court erred in overruling the demurrer to the second paragraph of the separate answer of Anna Trapp. 2. The court erred in overruling the motion for a new trial.
The decisions of this court affirm the doctrine that a married woman is not bound by the mere form of the contract into which she enters, but the facts must control in determining the question whether the wife or her property is surety for another. Vogel v. Leichner, 102 Ind. 55; Nixon v. Whitely, etc., Co., 120 Ind. 360; State, ex rel., v. Kennett, 114 Ind. 160; Voreis v. Nussbaum, 131 Ind. 267. The contention of appellant's counsel that it is hard to see how the question of suretyship can be raised where there is but one maker of the promissory note sued upon, is quite plausible. But this is no longer an open question. In Miller, Exr., v. Shields, 124 Ind. 166 (171), the court made the same query, and BERKSHIRE, J., said: "It is quite difficult to imagine the relation of principal and surety without a principal, and equally so to find a substantial reason on which to rest the presumption that whenever a married woman executes her individual promissory note she oc