
    Sohl et al. v. Evans et al.
    [No. 3,883.
    Filed December 12, 1901.
    Motion to reinstate denied June 26, 1902.
    Transfer denied October 16, 1902. ]
    Appeal and Ekkok. — Notice to Coparties.— Vacation Appeal.— The statutory requirements, §647 Burns 1901, that in a vacation appeal by a part of several coparties, written notice thereof shall be served upon all other coparties, or their attorneys of record, and proof thereof filed with the Olerk of the Appellate Court, is jurisdictional and imperative, pp. 636, 637,
    
    
      
      Appeal. — Death of Coparty. — Notice of Appeal. — Vacation Appeal. — Under §648 Burns 1901, providing that in case of the death of any or all of the parties to a judgment before an appeal is taken, notice of appeal may he served upon the person against whom the action might have been revived if death had occurred before judgment, notice .must he served upon the personal representatives, not the . heirs, pp. 687, 688.
    
    From Hamilton Circuit Court; J. A. Roberts, Judge.
    Action by James L. Evans and another against Aaron Sohl and others for money had and received, and in attachment and garnishment. From a judgment for plaintiffs, Aaron Sohl appeals.
    
      Appeal dismissed.
    
    
      T. J. Kane, R. K. Kane, T. E. Kane, B. K Elliott, W. F. Elliott and F. L. Littleton, for appellant.
    
      George Shirts, W. R. Fertig, C. N. Gentry, F. E. Gavin, T. P. Davis and J. L. Gavin, for appellees.
   Black, J.

J ames L. Evans and Aaron D. Booth brought their action against Aaron Sohl and a number of other persons, all of whom, except one J. E. Eubanks, are appellants; the complaint showing a cause of action in favor of the plaintiffs against said Aaron Sohl for money had and received by him for the use of the plaintiffs, which he converted to his own use, in the sum of $3,000; the complaint being accompanied by an affidavit in attachment and in garnishment against the other defendants, and by an undertaking in attachment. Afterward James L. Evans, and later Herbert H. Stephenson and John C. Stephenson, became underfiling claimants against the same parties in the same cause. Thereafter such proceedings were had that the court made a special finding of facts, with conclusions of law, and rendered judgment against Aaron Sohl in favor of James L. Evans and Aaron D. Booth for $187.40, in favor of James L. Evans for $5,010, and in favor of Herbert H. Stephenson and John O. Stephenson for $32.70; also sustaining the proceedings of the original plaintiffs and the underfiling plaintiffs in attachment and garnishment; adjudging that they recover of the garnishee defendants the several amounts found against them, the amount so adjudged against each garnishee being set out; among the items being one as follows: “Of and from the defendants J. E. Eubanks and Marion Eubanks $288.20.” It was further adjudged that the several garnishees pay to the clerk, and, in default thereof, that execution might issue on order of the plaintiffs or underfiling plaintiffs to the sheriff, to be levied and collected of the property of the several garnishees, — the proceeds to be paid by the sheriff to the clerk, — and that the sums so recovered from the garnishees be applied to the several judgments and costs herein recovered by the plaintiffs and underfiling plaintiffs, in proportion to the amounts of the several judgments, etc.

Aaron Sohl alone assigns error. In the caption of each of the four separate assignments the plaintiffs and the underfiling plaintiffs are named as the appellees, and Aaron Sohl and the garnishees are named as the appellants, except that instead of the name of the defendant J. E. Eubanks, which is omitted, there are inserted the names of eight persons not parties, who in the assignment of errors are called the only heirs of J. E. Eubanks, deceased. In the transcript on appeal, immediately before the clerk’s final certificate, is a transcript of a petition of Aaron Sohl, and of proceedings thereunder in the court below, purporting to substitute as defendants these eight persons as heirs of J. E. Eubanks, deceased, said to have died after judgment. The appeal was taken in vacation. Proofs of service of notice of the appeal by Aaron Sohl upon the persons so joined as his co-appellants in,the assignment of errors are attached to the transcript. Counsel for appellees direct attention to these peculiarities of the case, and insist that the appeal should be dismissed.

The statute authorizes an appeal by a part of several coparties, requiring, however, if it be a vacation appeal, that they serve written notice of the appeal upon all other coparties or their attorneys of record, and file proof thereof with the Clerk of the Appellate Court. §647 Burns 1901, §635 Horner 1901. The statute also provides that, in case of the death of any or all the parties to a judgment before an appeal is taken, an appeal may be taken by, and notice of an appeal served upon, the persons in whose favor or against whom the action might have been revived if death had occurred before judgment. §648 Burns 1901, §636 Horner 1901. Where a vacation appeal is taken by a part of several eoparties, the statutory requirement of service of notice of the appeal upon all the other coparties is jurisdictional and therefore imperative. It was for a time regarded and treated as a technical requirement which might be waived, but that view has been discarded. Holloran v. Midland R. Co., 129 Ind. 274; Hutts v. Martin, 131 Ind. 1, 31 Am. St. 412; Gregory v. Smith, 139 Ind. 48; Benbow v. Garrard, 139 Ind. 571; Vordermark v. Wilkinson, 142 Ind. 142; Lee v. Mozingo, 143 Ind. 667; Shuman v. Collis, 144 Ind. 333; Midland R. Co. v. St. Clair, 144 Ind. 363; Lowe v. Turpie, 147 Ind. 652, 37 L. R. A. 233; Abshire v. Williamson, 149 Ind. 248; Crist v. Wayne, etc., Assn., 151 Ind. 245; Michigan, etc., Ins. Co. v. Frankel, 151 Ind. 134; Walsh v. Brockway, 13 Ind. App. 70; Elliotts’ App. Proc., §145; Ewbank’s Manual, Chap. 12 and 13. In Abshire v. Williamson, supra, it is said, that before any court will proceed to adjudicate upon the subject-matter, it must first acquire jurisdiction over all the parties whose rights or interests will be necessarily affected by its judgment. See, also, Michigan, etc., Ins. Co. v. Frankel, supra.

If the judgment of the appellate tribunal will materially affect the rights of persons who were parties in the lower court, they should be made parties on appeal and should be notified; and whenever the presence of parties is essential to a complete adjudication, the question is jurisdictional, and the appeal can not be entertained unless such parties áre notified as required by the statute. Elliotts App. Proc., §§140, 144. The -garnishees, against whom it was adjudged that they should pay specified sums for the satisfaction of the claims of the appellees against Aaron Sohl, are materially interested in the success or failure of the appeal of Aaron Sohl. If there was no judgment against him, there could not properly be any recovery in favor of the appellees against the garnishees. Emery v. Royal, 117 Ind. 299. The entire judgment based on the conclusions "of law, which are assigned as errors, is attacked on appeal. Counsel for the appellant Aaron Sohl took this view of the matter, and named the coparties, except one, deceased, in whose stead they named his heirs as appellants in the assignment of errors, and served notice of the appeal upon all so named.

The judgment against the garnishee was a personal judgment for money only, and had no relation to the title to real estate. See Ewbank7s Manual, §§145, 166. If this garnishee had died before judgment, while the cause was still pending in the court below, the action as against him could not have been revived agjainst his heirs. After his death the judgment would be a claim to be discharged by his personal representative. The proceeding set forth in the transcript, above noticed, purporting to substitute the heirs as defendants, could not avail against the requirement of the statute relating to the death of a party to a judgment before an appeal is taken.

Appeal dismissed.  