Bliss v. Grayson

• Decision Date: 01 February 1900
• Parties: BLISS v. GRAYSON et al.
• Court: Nevada Supreme Court

59 P. 888

25 Nev. 329

BLISS v. GRAYSON et al.

Supreme Court of Nevada

February 1, 1900

On rehearing. Affirmed.

For former opinion, see 56 P. 231.

Bonnifield C.J., dissenting.

Robert M. Clarke, for appellants.

J. W Dorsey and Wm. S. Bonnifield, for respondent.

MASSEY J.

The petition for a rehearing, involving practically all the questions passed upon by the court, is both voluminous and exhaustive. We do not believe it is necessary to review all the matters contained therein, as we are satisfied that the rulings made are correct; but, as it is apparent from the petition that counsel has mistaken the facts of the record and the effect of the decision, we will consider such matters set up in the petition as relate to the mistaken facts.

The arguments of counsel with reference to the effect and scope of the order denying appellants' motion for a new trial and the authorities cited in support thereof, are not pertinent to the question presented in the record and decided by the court. We were not required by the record to determine whether the Dunphys, co-defendants of the appellants, had abandoned their motion for a new trial, and we did not so decide. Neither was it necessary to even consider whether the record presented such a question. The record shows that the appellants and their co-defendants, the Dunphys, interposed separate motions for a new trial, based upon a joint statement of all the moving parties, and that the order of the court, for some reason not developed by the record, denied the motion of the appellants, and did not deny the motion of the Dunphys. To hold that the motion of the Dunphys had been denied by the order would require the interpolation of words not in the order, or that the language used in the order be given a meaning not authorized by any rule of construction. Concede, for the purpose of the argument, that the language used in the order would warrant the court in holding as counsel claim; then is respondent confronted with the fact that the Dunphys have appealed therefrom upon the same record, seeking the same relief as was asked by the appellants. They are alike interested in the reversal of the order upon the same record. Their interests are identical and do not conflict, and are not, in any sense of the word, adverse, within the meaning of our statute. Taking the record as it stands, the law clearly supports the decision of the court. The supreme court of California has held that the notice of appeal from an order denying a motion for a new trial need only be served upon the parties to the motion in the court below. Watson v. Sutro, 77 Cal. 609, 20 P. 88. The same court has held that even on an appeal by one judgment defendant from a judgment perpetually enjoining the continuance of the trespass, and for damages, a motion to dismiss the appeal, based upon the fact that the notice of appeal had not been served upon co-defendants and parties to the judgment, should not be sustained; the co-defendants not being adverse parties, within the meaning of the statute. Jackson v. Brown, 82 Cal. 277, 23 P. 142. Under the showing in the record, we are unable to perceive how or in what manner the affirmance or reversal of the order appealed from can affect the interests of the Dunphys in this controversy. It will not enlarge their liabilities or increase their burdens under the decree; neither will it change their rights under the pleadings and issues.

The claim that the notice of appeal should have been served upon the defendants as to whom the action was dismissed is equally untenable. They were dismissed upon motion by order of the court at the time the decision was rendered, over the objection of the appellants. Counsel assumes in his argument that, in the action of the court dismissing these defendants, no other persons than the dismissed defendants could be affected in their rights. They are not parties to the decision and judgment of the court. Their interests are not determined by the decision and judgment of the court, or by the order of the court denying the appellants' motion for a new trial. The order denying the motion for a new trial and the judgment do not affect or change their rights or interests in any manner. If their interests can at all be affected, it will be only after they have been properly brought into court, and after a hearing had. Under a statute in Indiana requiring that, upon an appeal by one or several parties, notice of appeal must be served upon "all the other co-parties," it was held by the supreme court of that state, on motion to dismiss an appeal where co-parties had not all been served, that this requirement of the law applied to those co-parties only who were parties to the judgment. Lowe v. Turpie (Ind.) 44 N.E. 25, 47 N.E. 150, and 37 L. R. A. 245; Alexander v. Gill, 130 Ind. 485, 30 N.E. 525; Koons v. Mellett, 121 Ind. 585, 23 N.E. 95, 7 L. R. A. 231. In the state of Kansas, under a statute requiring service upon the "adverse" party, it has been held to the same effect. The supreme court of Oklahoma, under a code of civil procedure copied from the Code of Kansas, has held to the same effect; and an exhaustive review of the rule prevailing in Kansas and in that territory will be found in the opinion of that court in Board v. Harvey, 49 P. 1006.

In addition to what has already been said, we cannot understand by what rule of practice, statutory or otherwise, prevailing in this state, it could be successfully claimed or maintained that the service of the notice of intention to move for a new trial, or the service of the notice of appeal, upon a person not a party to the judgment and the action at the time of such service, would confer jurisdiction upon the trial or appellate court over such person, so as to enable either to determine any matter presented by the motion for a new trial, or in any manner make any order or judgment affecting the rights of such person by which he would be bound. Neither are we able to understand, as applying to the further claim of the respondent in his petition, under what rule of law prevailing in this state could it be maintained that the reversal of the order denying the motion for a new trial would operate to restore parties to the action who are not parties to the judgment, and who were not parties to the action at the time the motion was interposed and the order denied. Neither do we know of any rule of law prevailing in this state would compel a person not a party to an action or judgment to come into the trial court and be heard under such service of notice of motion or notice of appeal, or, on failure so to do, bar him of a hearing as to the matters determined in the case. These defendants, dismissed by the action of the court, before judgment, and before the motion for a new trial was interposed, are as much strangers to the record as they would be had they never been served.

It is further claimed in the petition that the failure of the appellants to serve the Dunphys, their co-defendants, with notice of intention to move for a new trial, warrants this court in dismissing the appeal. This question is not new, so far as this court is concerned, and has been directly passed upon by the supreme court of California. In Watson v. Sutro, supra, it was held, in effect, that, if the notice of intention to move for a new trial was not served on all the proper parties, the matter is one for consideration on the hearing of the appeal, and is not ground for dismissal. Conceding, for the argument, that the Dunphys should have been served with a notice of intention to move for a new trial, the respondent cannot complain of such failure, nor can the Dunphys, as they waived such service by joining in the statement on motion for a new trial. That such service could be waived, or the notice itself waived, is amply supported by authority. Dominguez v. Mascotti. 74 Cal. 269, 15 P. 773; Beck v. Thompson, 22, Nev. 109, 36 P. 562.

The further claim is made that, it appearing that the order of dismissal had been consented to by some of the defendants, it is binding on those objecting thereto, they not having appealed therefrom within the statutory time. It is not necessary to discuss the question whether or not the order of dismissal is appealed under our statute. The order was made upon motion before judgment. The appeal is not from the judgment and the order of dismissal. The cases cited in support of respondent's contention contain, we presume the correct rule of law to be applied in a proper case; but there is a plain and clear distinction between the cases cited and the case at bar. A brief review of some of the cases cited will readily make this distinction clear. In Railway Co. v. McCarty, 8 Kan. 126, it was sought, in an action brought upon the judgment, under an answer...