ON PETITION FOR A REHEARING.
Downey, J.A petition for a rehearing has been filed in this case in which we are asked to review our decision upon the point decided in the case ; and we are asked to grant a rehearing on two grounds not mentioned in the opinion, but which were necessarily decided in arriving at the conclusion stated in the opinion. Upon the question as to whether the evidence established any of the alleged causes for contesting the will, we see no reason to change the decision announced in the opinion.
It was claimed in the brief of counsel for the appellees, that the bill of exceptions setting out the evidence was not properly in the record, because, as was insisted, the record did not show that it was filed within the time given by the court. This position was so clearly unsupported by the *14record that we supposed it unnecessary to speak of it in the opinion, and left it to be inferred that the objection was not allowed, by deciding the case as though the bill of exceptions was properly in the record. The facts are, as shown by the record, that time was given by the court to the defendants, on overruling the motion for a new trial, “ until the 3d day of August, 1870, in which to complete and file their bill of exceptions to the' rulings of the court in said cause.” In the record immediately preceding the copy of the bill of exceptions containing the evide’nce, and evidently relating to the time of its filing, are these words: “ Filed June 17th, 1870, Wm. K. Wallace, Clk.” • At the conclusion of the bill of exceptions, preceding the signature of the judge is this statement:
“ And to the overruling of which motion by the court, the defendants, at the time, excepted, and tender this, their bill of exceptions, and pray that the same may be signed and sealed by the court,-day of June, 1870.” Counsel now insist that the bill of exceptions “ does not show a signing in time; that it only shows that the judge was asked to sign it on the- day of June, 1870. Whether then signed or not, does not appear.” We think the learned counsel would have us indulge too much skepticism upon this point. The bill of exceptions was certainly signed before it was marked filed by the clerk on the 17th of June, 1870, which was within the time limited.
The other point made, which is not referred to in the opinion, grows out of these facts. In the assignment of errors in this court, John Rabb, Smith Rabb, Levi Rabb, and Franklin Rabb, are named as appellants, and Harriet Graham, Ferguson Graham, Margaret Sharon, John H. Sharon, Ancher Dunkerly, William Dunkerly, Rhoda Ann Rabb, Mary Benner, David Benner, Olive Davidson, Edward Davidson, Charles Rabb, Frank Rabb, Garrett Rabb, Webb Rabb, and Jane Rabb, are made appellees, it being stated that “the said appellees who were defendants below, refus*15ing to join in the appeal, are made appellees by the appellants.” The appeal was submitted in this shape, without any objection from any one. But when we came to decide the case, we found that process had been served on the appellees who were plaintiffs below, but never had been served on the appellees who were defendants below, but who had not joined in the appeal. Not thinking it proper to dispose of the case until all those who were to be affected by the decision had been notified, the court, of its own motion, set aside the submission, that there might be process served on the other appellees. This was done on the 30th of May, 1872. Afterward new process was issued and served on some of those who had not been served, and as to the others the counsel of the appellees entered their appearance, in writing, in the clerk’s office, stating (that they declined to join in the appeal, no objection being made that they should have been named as appellants. The cause was then again submitted, on the 27th of November, 1872, by agreement. On the 16th day of December, 1872, a written request was made by counsel for appellants, that the cause be placed in the order on the docket in which it stood at the time of the previous submission, in order to obtain an early decision.. Counsel for appellees joined in this request in this form. “I join in the above petition to the court, and add that the submission was probably set aside under a misapprehension of the condition of the record as to the necessary parties. The parties for whom summons was ordered were, with one exception, not parties to the suit, though named in the complaint. They were not necessary parties, and were not such in fact. As to the exception, an appearance is entered upon the record. The parties were simply named as being heirs. It was not • necessary, under the statute, to make them parties. Sec. 39, p. 559, 2 G. & H. Under this section, any one of the parties may contest, and the executor and other persons beneficially interested only are to be defendants. These were the only defendants. I think it would be but *16simple justice to reinstate the cause, and earnestly ask that it be done. The estate is suffering from delay.
"Thos. F. Davidson, for appellees.”
On the fly-leaf of one of the printed copies of the appellees’ brief, there is this statement, in pencil, without date: “ I desire to call the attention of the court to the fact that the parties not joining in the appeal have not yet been properly made parties here. The submission has once been set aside for this reason, and I now ask that the appeal be dismissed for this cause. To dismiss is the practice of the court. Thos. F. Davidson.”
The cause was not advanced as requested, but was decided at as early a day as the other business of the court would allow, and the opinion was filed on the 15th day of September, 1873.
Counsel for appellees now urges in the petition for a rehearing, that “ the court ought not to have considered the case at all over the objection of appellees, because there has never been a valid assignment of errors. All the appellees, except Mrs. Sharon, Mrs. Graham, Mrs. Dunkerly, and their husbands, should have been appellants, and the assignment fails to show why they are made parties at all. This objection was insisted on by appellees, and has apparently not been noticed by the court.” We think it must be evident from this statement of the facts, not only that the objection now urged was never made before, but that it was expressly waived by the counsel now urging it. The parties affected by the decision were all duly notified of the appeal, and we think it is now too late, under the circumstances of this case, to urge an objection that some of them were named as appellees, when they should have been named as appellants. Under section 551, 2 G. & H. 270, it is the correct practice to unite those who do not appeal with those who appeal, in taking the appeal and in assigning the errors; those who appeal must then serve notice on those who do not, and file the proof thereof with the clerk of this court. Then, unless the parties thus noti*17fied appear and decline to join in the appeal, they shall be regarded as having joined, and shall be liable for their due proportion of the costs. If they decline to join, their names may be stricken out on motion, and they shall not take an appeal afterward, nor shall they derive any benefit from the appeal, unless from the necessity of the case, except persons under legal disabilities. When the section in question says the names of those who decline to join in the appeal may be stricken out on motion, it must mean, we presume, that their names are to be stricken out of the assignment of errors, which is the foundation of the' proceeding in this court; and unless their names had been first inserted in the assignment of errors, there would be no propriety in saying that they should be stricken out. Several appeals have been dismissed for non-compliance with this section, when they were taken by part only of the co-parties, and there had been no compliance with the requirements of the section, and when there had been no waiver of the objection. The reason why the appeal in this case was not dismissed on the first hearing of it was, that all the parties had been mentioned in the assignment of errors as parties in this court, on one side or the other, and the only question then was, that process had not been fully served on the parties named as appellees. We are referred to the case of Aylesworth v. Milford, 38 Ind. 226; and we are asked to examine the record in that case, and are assured that it is, on this point, like the case under consideration. We have made this examination and find the facts to be, that the judgment in the common pleas was rendered against Aylesworth and McElroy; Aylesworth alone appealed, but he made McElroy an appellee with Milford, the plaintiff below, and he was notified to appear in this court as an appellee, “ and defend said appeal,” etc. This was not regarded as a compliance with said section, and the appeal was for that ■ cause dismissed by the court. There are two important particulars, at least, in which these cases differ. In the case we are *18considering, the assignment of errors shows that those named as appellees, who were defendants below, are made appellees because they refused to join in the appeal, while in the case cited, there was no such statement in the assignment of errors; and, second, there was, in that case, no waiver of the irregularities as there has been in this case. Had it not been made necessary to state the facts of the case as we have done, indisposing of the petition for a rehearing, we should not have regarded it as either useful or desirable to do so.
The petition for a rehearing is overruled.