Hall v. Youche , 214 Ind. 24 ( 1938 )

ON PETITION FOR REHEARING. The appellant has filed a petition for a rehearing in this case wherein an opinion was given on March 23, 1938. It is stated in the petition that the reason given in the opinion dismissing the appeal was based upon a false affidavit of appellee. The affidavit referred to was considered by the court as one of the reasons for dismissing the appeal. The appellant filed a counter affidavit, but through the oversight of the writer of the opinion it was overlooked. It was no fault of the appellee or his attorneys that the error was committed.

However, disregarding the affidavit of the appellee, we are still of the opinion that the appeal should be dismissed. As shown in the opinion, the appellant on October 15, 1932, conveyed the real estate in question to one Verla Donkle and has had no interest in said real estate since that time. At the time, May 25, 1936, suit to foreclose the mortgage was filed and at the time of judgment of foreclosure the appellant had no interest in said real estate. The real party in interest was Verla Donkle, owner of the real estate; she has taken no appeal from the judgment of foreclosure and has assigned no errors in regard thereto and it is now too late for her to take an appeal. The real estate has been sold under the terms of the decree of foreclosure proceedings and no effectual relief could be given in the affirmance or reversal of this case.

Petition for rehearing is denied.