Coffin v. Edgington

• Decision Date: 28 January 1890
• Citation: 2 Idaho 627,23 P. 80
• Parties: COFFIN ET AL. v. EDGINGTON ET AL
• Court: Idaho Supreme Court

23 P. 80

2 Idaho 627

COFFIN ET AL. v. EDGINGTON ET AL

Supreme Court of Idaho

January 28, 1890

DEATH OF PARTY-SUBSTITUTION.-After judgment was rendered, and before notice of appeal was filed or served, one of the defendants died, no substitution having been made; held, that all proceedings on the appeal were null and void as to the representatives of the deceased defendant.

SERVING NOTICE OF APPEAL.-If a party to an action dies after the rendition of judgment and before filing and serving notice of appeal, the authority of the deceased's attorney to act terminates, and any subsequent action of the attorney before substitution will not bind the representatives of the deceased or any other party in interest.

SAME.-Any party to an action, whether plaintiff or defendant, may appeal, but the notice of appeal must be served on all parties who would be affected by any order of the appellate court, whether said parties be plaintiffs or defendants or interveners.

(Syllabus by the court.)

APPEAL from District Court, Alturas County.

Motion against Lewis and Edgington overruled, and the motion to dismiss the appeal as to all the defendants granted, without prejudice.

Lyttleton Price, F. E. Ensign and V. S. Anderson, for Appellants.

No brief filed.

Kingsbury & McGowan, for Respondents.

Appeal taken under section 4808 of the Revised Laws. Notice must be served on each adverse party. (Williams v. Santa Cruz Min. Assn., 66 Cal. 193, 5 P. 85; Senter v. De Bernal, 38 Cal. 637; In re Medbury, 48 Cal. 83; Reed v. Allison, 61 Cal. 461; O'Kane v Daly, 63 Cal. 317.) "Adverse" party defined. (Hayne on New Trial and Appeal, pp. 630, 631; Senter v De Bernal, 38 Cal. 64; Randall v. Hunter, 69 Cal. 80, 10 P. 130; O'Kane v. Daly, 63 Cal 317.) Death revokes the authority of an attorney. (Hayne on New Trial and Appeal, 631; Judson v. Love, 35 Cal 463; Shartzen v. Lou, 40 Cal. 96; Sheldon v. Dalton, 57 Cal. 19.)

SWEET, J. Beatty, C. J., and Berry, J., concur.

OPINION

SWEET, J.

These are appeals from the second district. It is unnecessary to make a statement of the facts involved in the case. It is here presented on a motion by the respondents to dismiss the appeals, and a review of the proceedings in connection therewith will enable us to dispose of the issue at bar.

On the ninth day of October, 1889, E. C. Coffin, R. W. Berry, J. M. Burkett, and W. H. Redway, doing business under the firm name of Coffin & Co., obtained a joint and several judgment against A. P. Turner, T. J. Edgington, W. H. Nye, V. S. Anderson and J. S. Lewis for the sum of $ 933.35, with interest. On the eleventh day of October, 1889, defendants filed and served their notice of appeal. Defendants appeal from the judgment, as well as from the order overruling the motion for a new trial. The appeals were perfected, and the cause was regularly called for hearing in this court. The respondents submit two motions; one of them being a motion to dismiss both appeals. The other asks for an order of this court affirming the judgment of the court below as against appellants T. J. Edgington and J. S. Lewis. The motions were not presented in this order; but, for reasons that will appear, we consider the second motion first. The second motion is based upon an affidavit made by R. W. Berry, one of the plaintiffs, in which he sets forth the fact that after the entry of the judgment in the court below, "and before the notice of appeal herein was filed or served, and before any of the proceedings on the said appeals were had or taken," defendant Lewis died. The facts set forth in the affidavit are admitted. The affidavit of Berry was filed in this court before the cause was called for argument. This was the proper time to direct the attention of the court to the fact, and the manner adopted was approved in Judson v. Love, 35 Cal. 463. It further appears from the transcript, as well as from the admissions of counsel, that no substitution of the personal representatives of the deceased defendant was had in the lower court prior to the proceedings had on appeal, and that the attorney for Lewis acted in behalf of the latter's representatives, in said proceedings, without authority.

The question presented is as follows: Has this court jurisdiction to hear and determine this appeal, in view of the fact that all of the proceedings taken and had on the appeal were subsequent to the death of said defendant Lewis? We think not. In the case of Sheldon v. Dalton, 57 Cal. 19 the court say: "There were two plaintiffs in this case, one of whom died before this appeal was taken. There was no suggestion of the death, and no substitution of the personal representative of the deceased plaintiff. It is conceded that the appeal was prematurely taken, and the motion to dismiss is granted." In the case of Judson v. Love, 35 Cal. 463, the same question was involved. Judge Sawyer, speaking for the court, uses the following language: "A motion is made to dismiss the appeal as to the defendant Love, based, firstly, upon exceptions to the transcript; and secondly, upon affidavits filed showing that defendant Love died on the 15th of March, 1866, after the rendition of the verdict in the court below, and before any notice of intention to move for a new trail was given, on the ground that all subsequent proceedings, and motion for new trial, and the attempt to appeal, are void and ineffectual for any purpose as to said defendant Love and his successors in interest, for want of any proper party to the suit, or of any person upon whom a valid service of papers could be made." Again, the court say: "It is clear that all these proceedings, except the entry of judgment on the verdict before rendered, had since the death of defendant Harlow S. Love, on the fifteenth day of March, 1866, are irregular and void as to him, and his successors in interest. There was from that time forth no party before the court as to the interest of Love in the matter in controversy, and no one authorized to represent it. The power of attorney necessarily ceased with the death of the principal. No further proceedings could be had without bringing in the representatives of Love. The Practice Act authorizes a judgment to be entered upon a verdict when a party dies after verdict and before judgment, . . . . but this is as far as it goes. Warren v. Eddy, 13 Abb. Pr. 28, is in point. Notice of argument had been served on the attorney of defendant after the death of the latter. The court say: 'At the time of the service of the notice, J. W. Culver could not act for a dead man, and ...