Opinion
No. 23035
Decided March 23, 1932.
Error proceedings — Only parties interested in reversing judgment, necessary parties — Party against whom nothing adjudicated, may be omitted.
In a proceeding in error, only parties in interest in the judgment sought to be reversed need be made parties. It is not error to omit a party where nothing had been adjudged either for or against him. ( Roberts, Exr., v. Roberts, Jr., 61 Ohio St. 96, 55 N.E. 411, fourth proposition of syllabus approved and followed.)
ERROR to the Court of Appeals of Morrow county.
Laura Pace, now deceased, instituted an action in the court of common pleas of Morrow county against her husband, Reuben Pace, for alimony. In that action she asserted that Reuben Pace was the owner of an interest in real estate which had theretofore come to him by the will of his then deceased wife. This provision was as follows: "1. I give, devise and bequeath all of my estate both personal and real to my husband, Reuben Pace, to use and enjoy as he may see fit with power to sell any and all real estate of which I may die seized, and at his death, whatever remains of my estate I give, devise and bequeath to Dora Maud Pace, daughter of my husband, Reuben Pace, to be hers absolutely and in fee simple."
By a subsequent provision Reuben Pace was named as executor and authorized to sell the real estate of the testatrix with full power to execute proper conveyances therefor.
The court of common pleas awarded alimony in accordance with the prayer of the petition, and made the same a lien upon the lands of Reuben Pace, described in the petition, and directed the issuance of execution. Execution was levied on eighty acres of said land and sale thereof made. A motion to set the same aside on the ground that Reuben Pace was the owner of only a life estate, with power to sell, and that in the absence of the exercise of such power by him a fee could not be sold and conveyed, was overruled, and the sale confirmed November 15, 1930. In another action brought in said court June 9, 1930, Reuben Pace sought to enjoin the sale of said real estate, and the same question was there presented and determined. The two cases were in fact consolidated October 8, 1930, and a decision of the question presented in the two cases was entered November 15, 1930. A motion for a new trial was overruled December 13, 1930, and error was prosecuted to the Court of Appeals, 41 Ohio App. 130, 180 N.E. 81. Laura Pace died while the case was pending in that court and her administrator, F.O. Haldeman, was substituted as a party.
The jurisdiction of the Court of Appeals was challenged on the ground that the petition in error was not filed within the time required by law, and on the further ground of a defect of parties. Upon hearing, the Court of Appeals held that execution could be issued and sale made to cover accrued installments of alimony, as had been done, but further held that Reuben Pace was the owner of a life estate only, with power to sell, and in that respect reversed the judgment. On motion the case was ordered certified to this court for review.
Mr. Benjamin Olds and Mr. T.B. Mateer, for plaintiff in error.
Mr. C.H. Wood and Mr. Grant Mouser, Sr., for defendant in error.
The contention that the Court of Appeals did not have jurisdiction is based upon the claim that the petition in error was not filed within the statutory limitation and that there was a defect of parties.
There is no foundation whatever for the claim first stated. It is true that motion for a new trial had been made following the award of alimony, and that it was overruled January 11, 1930. However, the validity of that order was not questioned and is not involved in this proceeding in error. The question there presented arose from the sale of lands to satisfy the award of alimony, and was considered and determined by the trial court subsequent to the consolidation of the two cases. Prior to that time there had been no issue as to the sale of lands to satisfy an alimony award, or as to the interest of Reuben Pace in said land, and hence no decision of the court affecting same. The motion for a new trial of such issue was overruled December 13, 1930. It was from that ruling of the court of common pleas that error was prosecuted to the Court of Appeals. Concededly the petition in error was filed within the required time thereafter.
The real parties in interest in the injunction suit were Laura Pace and Reuben Pace. The sheriff, though a party, was not one of the "parties who are united in interest," and therefore a failure to make him a party to the error proceeding would not require or warrant a dismissal of the action. The original action was one for alimony. Dora Beckley, who is the same person as Dora Maud Pace, whose name appears in the portion of the will set forth in the statement of facts, and her husband, Frank Beckley, were made parties defendant in that action, and they were charged in the petition with having disposed of certain personal property of plaintiff's husband, and upon his direction, and an accounting therefor was sought; but that claim does not seem to have been considered by the court and no order of accounting or of any other character was made affecting either Dora Beckley or Frank Beckley. It is sufficient if all parties in interest in the judgment sought to be reversed are made parties in the error proceeding. When nothing is adjudged either for or against a party, it is not error to omit such party from proceedings in error. Roberts, Exr., v. Roberts, Jr., 61 Ohio St. 96, 55 N.E. 411. These parties were in no sense united in interest, and the rule stated in Young v. Meyers, Jr., Exr., 124 Ohio St. 448, 179 N.E. 358, has no application to this case.
The defendant below, Reuben Pace, was the real party in interest in the error proceeding. He sought the reversal of the action of the court of common pleas whereby his property was subjected to sale upon execution based upon an award of alimony. The Court of Appeals found against him on that contention, but further found that no interest in said land greater than an estate during his life was subject to sale upon such execution. Under the provisions of the will set forth, Reuben Pace took only a life estate in the land in question, coupled with the power to sell. Johnson v. Johnson, 51 Ohio St. 446, 38 N.E. 61; Tax Commission v. Oswald, Exrx., 109 Ohio St. 36, 141 N.E. 678. It follows that the only interest in said real estate subject to levy to satisfy a judgment against Reuben Pace is his life estate.
There was no error prejudicial to plaintiff in error, and the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
MARSHALL, C.J., JONES, DAY, ALLEN, KINKADE and STEPHENSON, JJ., concur.