Baker v. Drews

• Decision Date: 15 December 1903
• Citation: 74 P. 1130,9 Idaho 276
• Parties: BAKER v. DREWS
• Court: Idaho Supreme Court

74 P. 1130

9 Idaho 276

BAKER v. DREWS

Supreme Court of Idaho

December 15, 1903

APPEAL from District Court of Kootenai County. R. T. Morgan, Judge.

Motion sustained and appeal dismissed, with costs.

Adolph Munter, for Appellant, files no brief on the motion to dismiss.

Charles L. Heitman, for Respondents Gowanlocks.

No service of the notice of appeal was ever made upon the defendant Carl Drews, and he is in no sense a party to this appeal. Respondents contend that notice of appeal should have been served upon the defendant Carl Drews, and that he should have been brought into the supreme court. This not having been done, the appeal should be dismissed, because this court has not jurisdiction of the parties to the cause. The appellate court has no power to hear and determine a case unless all the parties substantially affected by the judgment are brought before it. Summons and service, or service of notification of appeal of necessary parties, is accordingly essential to confer jurisdiction. (2 Ency. of Pl. & Pr., p. 192, and cases cited; Jones v. Quantrell et al., 2 Idaho 153, 9 P. 418; Coffin v. Edgington, 2 Idaho 627, 23 P. 80; Lydon v. Goddard et al., 5 Idaho 607, 51 P. 459; Lewiston Nat. Bank v. Tefft et al., 6 Idaho 104, 53 P. 271; Moody v. Miller et al., 24 Or. 179, 33 P. 402.)

OPINION

Per CURIAM.

This is a motion to dismiss the appeal on the ground that the notice of appeal was not served on the respondent Carl Drews. It appears from the record that Drews was served with summons and failed to appear and answer. Judgment was entered in favor of said respondent and defendants. An appeal was taken by the plaintiff and notice of appeal was not served on Drews. As it is clearly apparent from the record that Drews would be affected by a modification or reversal of the judgment, on the authority of Titiman et al., v. Alamance Min. Co., ante, p. 240, 74 P. 529, the motion must be sustained and the appeal dismissed, and it is so ordered, with costs of appeal in favor of defendants Gowanlocks.