Opinion
No. 19,250.
Filed December 3, 1958.
APPEAL — Motion to Dismiss — Motion Uncontested — Averments. — An uncontested motion to dismiss this appeal, which sets forth the judgment of the trial court and avers further that no motion for a new trial was filed against petitioner and that he is neither a necessary nor proper party to this appeal, is granted.
From the Hendricks Circuit Court, Howard A. Sommer, Special Judge.
Appellee-defendant, Russell Disney, has filed a motion to dismiss an appeal taken by appellant-defendant, Shirley Cline Wyatt, from a judgment in favor of appellee-plaintiff Charles Thompson as against Wyatt and in favor of Disney as against Thompson.
Appeal dismissed as to appellee Disney.
C. Wendell Martin, Bredell, Cooper Martin, all of Indianapolis, and Claud D. Raber, of Danville, for appellant.
William M. Osborn, Bingham, Summers Spilman, both of Indianapolis, Joe Stevenson and Stevenson, Kendall Stevenson, of Danville, of counsel, for appellee Charles Thompson.
ON MOTION TO DISMISS.
The appellee Thompson brought this action against appellant and appellee Disney for damages as a result of an automobile collision between a car driven by appellant and one driven by appellee Disney.
The complaint was in two paragraphs, both of which averred said Thompson was riding as a guest in the automobile being operated by Shirley Cline (now Wyatt). The first paragraph then charged said Wyatt with wanton and wilful misconduct in the operation of said automobile. The second paragraph charged appellee with negligence in the operation of the car he was driving.
Trial to a jury resulted in a verdict for $12,500.00 in favor of Thompson against appellant, and found for appellee Disney against appellee Thompson. Judgment accordingly.
Appellee Disney has filed his motion to dismiss this appeal as to him. The motion in addition to the facts set out above avers, in substance, neither party filed a motion for a new trial against him; that he is neither a necessary nor proper party to this appeal; he has no interest in the outcome of this appeal; the judgment was final as to him; that all issues as to him, appellee Disney, and appellant were finally disposed of in the trial court.
This motion was filed in the office of the clerk of this court October 30, 1958. Neither appellant nor appellee have in any manner opposed the granting of this motion.
We are of the opinion the motion should be sustained. It is therefore ordered that this appeal as to said appellee Disney be dismissed.
NOTE. — Reported in 154 N.E.2d 122.