Cook v. Miller

• Decision Date: 29 August 1917
• Citation: Cook v. Miller, 168 P. 911, 30 Idaho 749 (Idaho 1917)
• Parties: ISAAC T. COOK, JOHN T. CLARK, LOUIS F. MAHLER, MATILDA GABLE and W. A. ELLIS, Appellants, v. S.C. MILLER, Receiver of the SUNBEAM CONSOLIDATED GOLD MINES COMPANY, a Corporation, Insolvent, Respondent
• Court: Idaho Supreme Court

168 P. 911

30 Idaho 749

ISAAC T. COOK, JOHN T. CLARK, LOUIS F. MAHLER, MATILDA GABLE and W. A. ELLIS, Appellants, v. S.C. MILLER, Receiver of the SUNBEAM CONSOLIDATED GOLD MINES COMPANY, a Corporation, Insolvent, Respondent

Supreme Court of Idaho

August 29, 1917

APPEAL from the District Court of the Sixth Judicial District, for Custer County. Hon. F. J. Cowen, Judge.

Order confirming receiver's sale. Appeal dismissed.

Appeal dismissed. Costs awarded to H. C. Edwards and the Custer Slide Mining Company. Petition for rehearing denied.

O'Brien & Glennon, for Appellants, file no brief.

Wyman &amp Wyman, for Respondents Edwards and Custer Slide Mining Co.

Service of notice of appeal upon all adverse parties is jurisdictional, and without such service the appeal must be dismissed. (Anderson v. Knott, 1 Idaho 626; Slocum v. Slocum, 1 Idaho 589; Diamond Bank v Van Meter, 18 Idaho 243, 21 Ann. Cas. 1273, 108 P. 1042; Bridgham v. National Pole Co., 27 Idaho 214, 147 P 1056; State Bank v. Watson, 27 Idaho 211, 148 P 470; Berlin Mach. Works v. Bradford-Kennedy Co., 21 Idaho 669, 123 P. 637.)

A purchaser at a judicial sale is an adverse party, and must be served with notice of appeal. (3 C. J. 1014-1016; Smith v. Noble Bros. (Okl.), 153 P. 1150; Hibernia Sav. & L. Soc. v. Lewis, 111 Cal. 519, 44 P. 175; Thompson v. Superior Court, 119 Cal. 538, 51 P. 863; McDonald v. Citizens' Nat. Bank, 58 Kan. 461, 49 P. 595; Sanders v. Wade, 17 Ky. L. 205, 30 S.W. 656.)

BUDGE, C. J. Morgan and Rice, JJ., concur.

OPINION

BUDGE, C. J.

S. C. Miller was appointed receiver of the Sunbeam Consolidated Gold Mines Company, in an action brought in the district court of the sixth judicial district, in and for Custer county, wherein one H. C. Edwards was plaintiff and the above-mentioned company defendant, and as such receiver sold certain portions of the company's property to the Custer Slide Mining Company, which sale was confirmed by an order of the district court. This appeal is from the order of confirmation and is prosecuted by certain other judgment creditors of the company, all of whom appeared in the trial court and filed their joint and several protests against confirmation of the sale.

Edwards and the Custer Slide Mining Company appeared in this court and moved to dismiss the appeal on the ground that they and certain other adverse parties had not been served with notice of appeal. The attorney for appellants filed an affidavit in which he stated that he had mailed a copy of the notice to Milton A. Brown, the only attorney, as appellant contends, appearing of record, in relation to any of the matters involved in this appeal. The record discloses that Milton A. Brown was the attorney for the receiver.

It is not contended, nor is any showing made, that any of the other parties were served, either the plaintiff, defendant, the purchaser at the receiver's sale, or the other creditors who appeared upon the hearing. In order for this court to have jurisdiction of a cause, it must affirmatively appear that all of the adverse parties whose interest would be affected by a reversal or modification of the judgment or order appealed from have been served with the notice of appeal, and if it does not so appear, this court is powerless to go into the merits of the appeal. In the case at bar, so far as appears from the record, no one of the adverse parties has been served with the notice of appeal, and the case must be dismissed. (Anderson v. Knott, 1 Idaho 626; Tootle v. French, 3 Idaho 1, 25 P. 1091; Adams v. McPherson, 3 Idaho 718, 34 P. 1095; Doust v. Rocky Mountain Bell Tel. Co., 14 Idaho 677, 95 P. 209; Diamond Bank v. Van Meter, 18 Idaho 243, 21 Ann. Cas. 1273, 108 P. 1042; State Bank v. Watson, 27 Idaho 211, 148 P. 470, and cases therein cited; section 4808, Rev. Codes.)

But even if we should regard appellant's affidavit as...