On Petition for Rehearing.
Caldwell, J.Margaret E. Adams and the 170 other appellee.property owners, hereinafter designated as appellees, in whose favor judgment was rendered by the trial court, appearing specially to that end, have petitioned for a rehearing and moved for a modification of the mandate entered on this appeal. The basis of the combined petition and motion by which such relief is sought, stated generally, is as follows: That the sole foundation of this appeal as prosecuted by appellants is the alleged error of the trial court in stating its tenth conclusion of law; that appellees filed in this court a confession of error as to said conclusion, whereby this court acquired jurisdiction over the persons of appellees only for the purpose of adjudicating respecting the correctness of such conclusion; that cross-errors were subsequently assigned by appellees Kuhn and Defrees, administrators, hereinafter designated cross-appellants, but that appellees were not served with notice of the same, and they did not appear thereto, and consequently that this court did not acquire jurisdiction over appellees in their relation to such cross-errors. Appellees ask as relief that on a rehearing being granted, the court modify the mandate by striking therefrom all that relates to appellees. In aid of the petition and motion the following facts sustained by the record, except as otherwise indicated by us, are brought to oür attention: The judgment of the trial court consists of three paragraphs or specifications: By the first specification, which is based on the ninth conclusion of law, the city of Indianapolis, its officers .and agents, the contractor, and all persons claiming under or through *257Mm, are perpetually enjoined from taking any steps to collect assessments against the respective properties of appellees on account of said sewer, and the respective titles of appellees in and to said properties are quieted as against any lien or claim on account of said sewer or arising out of said assessments. By the second specification, which is based on the tenth conclusion of law, it is adjudged in effect that appellants are not entitled to a decree restraining and enjoining the collection of said sewer assessments as made against their respective properties, or quieting their title to such properties as against such assessments. The foundation of this specification is estoppel. By the third specification the costs are adjudged against the contractor and the city, except that the costs made by each appellant are adjudged against him.
Further facts brought to our attention respecting steps taken in 1913 are as follows: On June 11, appellants served appellees with notice of appeal. On June 14, appellants filed the transcript and proofs of notice and assigned error, and at the same time appellees confessed error. As we have said, the sole error assigned by appellants challenged the tenth conclusion of law. The confession of error as filed was several in form, and'was to the effect that each appellee confessed that as far as he was informed or knew, appellants’ assignment of error was true, and that the court did err in said conclusion. Wherefore, each appellee declined to defend this cause on appeal, and asked that no costs be taxed against him. Appellants’ assignment of error is signed by one of the attorneys who afterwards filed briefs in behalf of appellants. The confession of error is signed by other attorneys. On July 22, appellants’ briefs were filed. On September 5, the eross*258appellants assigned cross-errors and filed their briefs in answer and on their cross-errors. Appellants filed their reply briefs and in answer on the cross-errors September 30. November 1, the cross-errors were amended on petition filed October 6, and permission granted over opposition October 29. Appellees were not served with notice on the cross-errors or of the assigning thereof, and in no manner appeared thereto, save as hereinafter set out, and hence the argument that this court has not acquired jurisdiction over the persons of appellees to render any decision based on the cross-errors affecting their interests. It therefore becomes necessary to ascertain what relation appellees bear to the subject-matter of the cross-errors, and what attitude they have assumed on this appeal, and especially respecting the cross-errors. The cross-errors are to the effect that the court erred: (1) In overruling the demurrer to the complaint; (2,3, 4, and 5 respectively) that the court erred in the first, second, seventh and ninth conclusions of law respectively. The substance of the first, ninth and tenth conclusions of law is set out in the original opinion. The second is to the effect that the act of the city officers in extending the assessment roll on account of said sewer and in entering it on the books of the city treasurer was wrongful and void as to all property owners who made seasonable objection to the manner in which the sewer was constructed; and the seventh, that the mere fact that the properties of certain parties who were property owners had been connected with the lateral sewers which empty into the Pleasant Run interceptor sewer does not constitute such an acceptance of the sewer as to preclude such parties from contesting the assessment against their respective properties. In their relation to appellants and appellees, it is apparent without elabora*259tion that the error and cross-errors assigned involve their interests as follows: That the tenth conclusion of law and the error assigned thereon by appellants affect appellants alone; that the ninth conclusion of law and cross-errors assigned thereon affect appellees alone; that the first, second, and seventh conclusions and cross-errors assigned thereon and cross-error assigned on the ruling on the demurrer to the complaint might affect both appellants and appellees; that is, appellants and-appellees alike were interested in sustaining the ruling on the demurrer to the complaint, and the action of the court in deducing the first, second and seventh conclusions, but the ninth conclusion, which related only to appellees, did. not particularly concern appellants, and the tenth conclusion, which related only to appellants, did not particularly concern appellees. Appellants and appellees indicated their attitude towards the ninth and tenth conclusions, in that appellants did not challenge the former on their appeal, and appellees confessed error as to the latter.
15. Such being the condition of the appeal, it is urged, as indicated, that notice to appellees of the assigning of cross-error was a prerequisite to jurisdiction over their persons. If appellees appeared to the cross-errors, or to the appeal in its relation to the cross-errors, it thereby becomes unimportant whether they were served with such notice. We, therefore, proceed to determine whether there has been such an appearance.
If there has been such an appearance by appellees, it consists in the nature and contents of the brief filed September 30, 1913, and denominated “Reply Brief of Appellants.” This brief is in reply to the answer brief filed in behalf of the cross-appellants on appellants’ assignment of error, and also in answer to the argument contained in that brief in support of the *260assignment of cross-error. In so far as concerns the cross-errors, the “Reply Brief of Appellants” in the main is directed against assignments Nos. 1, 2, 3, and 4. As we have indicated, the nature of these assignments is such that, if sustained, two results would follow: (1) The judgment appealed from would not necessarily be reversed, even though the tenth conclusion of law considered alone were erroneous; (2) the foundation supporting the ninth conclusion of law would be undermined so that it could not stand if challenged by an assignment.
The fact of the first result justified counsel as representatives of appellants alone in defending against said assignments, and they could not thereby be held as representing appellees, even though the nature of such defense was such as appellees might well make in their own behalf as against such assignments. But said brief is broader than as indicated. It contains a complete argument in support of the ninth conclusion of law challenged by the fifth assignment of cross-error, and in which appellees alone are interested. Thus, on page 4 of such brief counsel declare their purpose to champion the cause not only of appellants, but also of appellees, using the following language: “Bo far as questions relating to the reversal of the judgment in favor of cross-appellants are concerned, the interests of the 171 appellees who recovered judgment pursuant to the ninth conclusion of law, and the 63 appellants who were denied relief, pursuant to the tenth conclusion of law, are identical, and the argument in favor of appellants on the cross-errors is also in favor of the 171 coparties in the trial court who are appellees here.” Under the head of “Propositions Relied On”, counsel by proposition No. 8 on page 7 declare their purpose to uphold the ninth conclusion of law by upholding the first conclusion. As stated, peti*261tioning appellees alone are interested in sustaining the ninth conclusion. On page 35' an argument is advanced in behalf of appellees to the effect that Kuhn is not shown to have any interest in the subject-matter of the litigation, and that in the absence of such interest he could not appeal from the judgment rendered, in favor of the petitioning appellees, “which was that 171 of the appellees recover costs and an injunction against Defrees and others.” In the ease at bar, an injunction was entered in favor of the appellees only. On page 39 counsel argue in justification of the injunction, and that authorities cited by the cross-appellants do not mitigate against the trial court’s decision that the injunction issue. On page 56 counsel state a proposition in support of the ninth conclusion of law which is the immediate foundation of the judgment in favor of appellees, and the brief closes with a summing up in support of all the conclusions of law challenged by the cross-errors. It thus appears that the cause of appellees in its relation to the cross-errors was in fact fully presented for the consideration of this court, with no sort of an intimation that appellees were not thereby making a full appearance. On such presentation this court, as appears from the original opinion, considered and decided all the questions material to a complete determination of the issues arising on both the errors and the cross-errors assigned.
16. An attorney as a member of the firm whose name appears signed as attorneys for appellees to said confession of error, which firm represented both appellants and appellees in the trial court, and signed, filed and presented"the motion for a new trial and reserved exceptions to the conclusions of law for appellants, supports' the petition for a rehearing and the motion to modify the mandate by *262■his affidavit. This affidavit recites, among other things, that his .firm represented the petitioning appellees in the trial court; that as a member of such firm, he signed its name to the said confession of errors, and that thereafter neither he nor said firm took any part in the conduct of the appeal, or in defending it in behalf of appellees or otherwise. There is no statement in said affidavit, and it does not otherwise appear, that said other attorneys who prepared and filed said reply brief did not have authority to brief the cause in behalf of appellees. It is improbable, if not inconceivable, that they would do so and thereby procure this court fully to consider the cause in its relation to said appellees in the absence of such authority. In any event the fact remains undisputed and indisputable that the attorneys last mentioned did brief the appeal in full and in the interest of appellees. The contrary not appearing, it is presumed that they had authority to do so. 2 R. C. L. 325; 6 Cyc 488, and cases.
The brief being on the merits of the cause, and filed pursuant to such presumed authority, constituted an appearance. It follows that the petition for a rehearing should be denied, and the motion to modify overruled.
Petition for a rehearing denied, and motion to modify the mandate is overruled.
Note.- — -Reported in 105 N. E. 1033, 109 N. E. 58. Authority of attorney to bind client, 76 Am. Dec. 256; 30 Am. Rep. 358; 6 C. J. 631; 4 Cyc 928.