Allen v. Garner

• Decision Date: 08 August 1914
• Docket Number: 2605
• Citation: 143 P. 228,45 Utah 39
• Court: Utah Supreme Court
• Parties: ALLEN v. GARNER et al

143 P. 228

45 Utah 39

ALLEN v. GARNER et al

No. 2605

Supreme Court of Utah

August 8, 1914

Appeal from District Court, First District; Hon. J. D. Call, Judge.

Action by Henry H. Allen against W. F. Garner and others.

Judgment for plaintiff. Defendants O. D. Merrill and others appeal.

DISMISSED.

Richards Hart & Van Dam and Nebeker, Thatcher & Bowen for appellants.

J. B Stewart, Leon Fonnerbeck and Stewart, Stewart & Alexander for respondent.

FRICK J. McCARTY, C. J. and STRAUP, J., concur.

OPINION

FRICK, J.

This action was commenced by the respondent, Henry H. Allen, to recover upon a promissory note for $ 2,000, of which W. F. Garner and the appellants, O. D., T. H., and Alma Merrill, were makers. A default was entered against the defendant Garner in August, 1911, upon which judgment was finally entered against him for said sum of $ 2,000 and accrued interest on the 28th day of August, 1913. The appellants, O. D., T. H., and Alma Merrill, filed an answer, denying liability upon the note. A trial resulted in a judgment in favor of Allen and against the Merrills, as well as against Garner, the judgment against the Merrills being entered, however, on the 28th day of February, 1913. The Merrills filed a motion for a new trial, which was overruled on the 8th day of July, 1913, and they alone appeal from the judgment. Notice of appeal was served upon Allen on the 31st day of December, 1913, or a few days before the six months within which an appeal could be taken under our statute (Comp. Laws 1907, Section 3301) had expired. W. F. Garner, although a joint maker of the note in suit and a party to the action, was nevertheless not made a party to this appeal, and was not served with notice thereof. Respondent, Allen, has interposed a motion to dismiss the appeal upon the ground that this court is without jurisdiction to hear it, for the reason that W. F. Garner, a party to the action, is not made a party to the appeal.

We need not pause here to again discuss the question of whether W. F. Garner, who was a joint maker of the note upon which judgment was rendered, is a necessary party to this appeal for the reason that he is so is settled by this court in the case of Griffin v. Southern P. Co., 31 Utah 296; 87 P. 1091, and cases there cited. In that case the prior cases in this court upon the question, together with the cases from other jurisdictions where similar statutes are in force, are collated by the present Chief Justice. In view, therefore, that a necessary party was omitted from the appeal and no notice was served upon him, the question is, Is this court without jurisdiction to hear and determine the appeal? Counsel for appellants insist that the rule laid down in Griffin v. Southern P. Co., supra, does not apply here because they, on the hearing of this case, to-wit: on the 29th day of May, 1914, produced a waiver of notice of appeal by Mr. Garner, in which waiver he also asks leave to enter an appearance in the case. Respondent's counsel objected to the filing of the waiver of notice of appeal and the entry of appearance by Mr. Garner, and the question arises, What effect, if any, can be given to the waiver of notice and offer of appearance by Mr. Garner? It will be observed that no waiver of notice of appeal was filed and no application to enter appearance by Mr. Garner was made until many months after the time for appeal had expired. Counsel for appellants, however, insist that the case of Belleville, etc., Works v. Sanderson, 16 Utah 119; 51 P. 150, is decisive of the question in their favor. It is true that in that case a motion to dismiss the appeal was interposed upon the same ground that one is interposed here, and this court permitted counsel to have the appearance of the omitted party entered in the case, and then proceeded to hear and dispose of the appeal. While the opinion in that case does not disclose the dates upon which the several orders were made, reference to the printed record filed in the case, however, does show that in that case the judgment appealed from was entered on the 18th day of May, 1897; that the notice of appeal was served and filed in this court on the 16th day of August, 1897. The opinion in the case was filed November 6, 1897. It is apparent, therefore, that when the waiver of notice of appeal in Belleville, etc., v. Sanderson, supra, was filed and the appearance of the omitted party was entered in this court in that case, the time for an appeal had not yet expired and hence a valid notice of appeal could still have been served and filed. It would thus have been a useless ceremony to require the service of a notice of appeal within the time within which a voluntary appearance was permissible. The question that confronts us here, however, is, Can parties confer jurisdiction upon this court to hear appeals by waiving notice of appeal or by entering their appearance at any time after the time for an appeal has expired? If the question is one merely of regularity or jurisdiction over the person, then, of course, we might permit an omitted party to enter his appearance at any time before the case is finally submitted, but if it is jurisdictional in the sense that it affects the power of this court to hear and determine the appeal, then, as a matter of course, the parties cannot confer jurisdiction by consent. We think the question is jurisdictional in the sense just stated. If it should be held otherwise, the statute which requires that an appeal to this court be taken within six months, and that the time to do so may not be extended by this or any other court, would be effectually repealed. In referring to the question now under consideration the Supreme Court of California, in Williams v. Santa Clara Min. Co., 66 Cal. 193; 5 P. 85, uses this pertinent language:

"This court has not jurisdiction to hear an appeal from a judgment, unless the appellant shall have served a notice of appeal on all the adverse parties; that is to say, upon all whose rights may be affected by a reversal of the judgment."

Again, in the case of Millikin v. Houghton, 75 Cal. 539; 17 P. 641, it is said:

"It may be said the objection cannot come from the moving respondents here, as they can suffer no injury by appellant's failure to notify the other defendants. The answer is the objection goes to the jurisdiction of the court to hear and determine the appeal, and the right to make the objection by any respondent before the court has been often recognized."

This seems to be the trend of all the authorities which emanate from jurisdictions where there is a positive and inflexible time limit within which notice of appeal must be served or a waiver of such notice be filed. We cannot legally hear nor determine an appeal unless it is taken within the time fixed by the statute. If we may not do that where none of the parties to the appeal are timely served with notice of appeal or have waived the notice and service thereof within the time limit, we may not do so if only one or more of the necessary parties to the appeal have not been served or have waived notice of appeal and service thereof within the time within which an appeal may be taken. Counsel for appellants, however, contend that Mr. Garner is a non-resident of this state and therefore the rule respecting notice and service thereof should not apply as to him. It, of course, requires no argument to show that while non-residents may affect the kind of notice and manner of service, yet it cannot dispense with the necessity of giving notice. If authority be required for this elementary proposition it is to be found in the case of Lapham v. Bailey, 61 Kan. 861; 60 P. 743. We are therefore forced to the conclusion that the motion to dismiss the appeal for the reasons stated should prevail.

The appeal is therefore dismissed at appellants' costs.

McCARTY, C. J., and STRAUP, J., concur.

ON APPLICATION FOR REHEARING.

FRICK J.

Counsel for appellants have filed a petition for a rehearing in which they contend that we have erred in sustaining the motion to dismiss the appeal. One ground especially urged is that we erred in holding that W. F. Garner, who was a defendant in the court below, was a necessary party to the appeal. It among other things, is now urged: (1) That Mr. Garner was not properly served with summons and was not brought into the case in the District Court, and hence that the judgment entered against him is void; and (2) that he is not interested in the judgment appealed from, and hence is not a necessary party nor even a proper party to the appeal. The question that the judgment against Mr. Garner was improperly rendered is raised for the first time on rehearing, but, in view of its jurisdictional nature, we have nevertheless carefully examined into the record of the proceedings had in the court below so far as we may do that in the absence of a bill of exceptions. The record discloses that Mr. Garner was properly served with summons by publication based upon a sufficient affidavit, and that the court clearly had jurisdiction to enter a judgment that he was a joint maker of the note in suit, that he was indebted for the sum stated in the judgment, and that the stock he had pledged to secure the payment of said note should be sold and the proceeds derived therefrom be applied on such judgment. The fact that the judgment is also personal in form in no way affects the validity of that portion to which we have referred. Giving appellants, therefore, the benefit of now raising the question without even an assignment to the effect that the judgment against Mr. Garner is void for the reasons stated, yet their objections, in our judgment, are not well founded, and have no merit in either fact or law. That contention must therefore...