Sipple v. Haltom , 86 Ind. App. 432 ( 1927 )

Mary Ann Haltom filed her application with the Industrial Board for compensation because of the death of her husband, Morris W. Haltom, which is alleged to have been the result of an accidental injury which arose out of and in the course of his employment by Frank Sipple, William Dickey and James Sipple as partners. On final hearing, compensation was awarded in the sum of $7.70 per week for not to exceed 300 weeks. Following the award, the three named defendants and the Indiana Liberty Mutual Insurance Company filed a praecipe for a transcript for use in an appeal to this court. The three named defendants and the named insurance company have filed in this court their joint assignment of error, asking that the award be reversed on the ground that it is contrary to law.

Appellee calls attention to the fact that the proceeding before the board was against the three named individuals as partners; that the award was against them and that the insurance 1. company was not named in the proceedings or in the award, and insists that the appeal should be dismissed. There is nothing in the assignment of error showing the insurance company to be in any way affected by the award. Appellants call attention to what they designate as the "Title page" of the transcript, on which the reporter for the Industrial Board purports to set out the title of the proceedings, the dates when the several hearings were had and the names of the lawyers appearing for the plaintiff and the defendants, and where the insurance company is named as a defendant. This page is no part of and does not purport to be a part of the proceedings before the board.

In Campbell, etc., Co. v. Souders (1917), 64 Ind. App. 138, 115 N.E. 354, the employer was the only defendant named in the proceedings until after an award had been made, after which 2. the employer and an insurance company filed a joint motion for a new trial, which was overruled on the ground that such a motion was not contemplated by the compensation act. An appeal was taken, a joint assignment of errors being filed by the employer and the insurance company. A motion to dismiss was sustained on the ground that there was nothing to show the insurance company had an appealable interest. So, in the instant case, there being nothing to show that the insurance company appealing has an appealable interest, the appeal might, under the case heretofore referred to, be dismissed, although we are of the opinion that the better practice is not to dismiss, but to affirm in accordance with the rule that when several parties unite in a joint assignment of errors, the assignment will be unavailing, unless it is good as to all joining therein, as was done in Carr v. Carr (1894), 137 Ind. 232, 36 N.E. 899.

We are prompted to say that a decision on the merits would lead to the same result.

Award affirmed.

Dausman, J., absent.