Deno v. Standard Furniture Co.

• Decision Date: 08 April 1937
• Docket Number: 26266.
• Citation: 66 P.2d 1158,190 Wash. 1
• Parties: DENO et al. v. STANDARD FURNITURE CO. et al.
• Court: Washington Supreme Court

66 P.2d 1158

190 Wash. 1

DENO et al. v. STANDARD FURNITURE CO. et al.

No. 26266.

Supreme Court of Washington, En Banc.

April 8, 1937

Appeal from Superior Court, King County; Robert M. Jones, Judge.

Actions by John Emory Deno, a minor, by John Deno, his guardian ad litem, and by Paul Dudley, a minor, by Florence Dudley Heath his guardian ad litem, against the Standard Furniture Company, the Oser Dreck Company and others, which were consolidated for trial.Judgments dismissing the actions as to all defendants except the Oser Dreck Company and judgments in favor of the plaintiffs as against the Oser Dreck Company and from the judgments in favor of the Standard Furniture Company, the plaintiffs appeal and the Standard Furniture Company moves to dismiss the appeal.

Judgments reversed.

Oscar A. Zabel and A. H. Solomon, both of Seattle for appellants.

J Speed Smith and Henry Elliott, Jr., both of Seattle, for respondent.

BLAKE Justice.

These are actions for damages for personal injuries sustained by plaintiffs as the result of the breaking and giving way of the railing of an outside stairway appurtenant to a tenement house owned by the Standard Furniture Company.The plaintiffs joined, as partiesdefendant, the Standard Furniture Company, Berman Schoenfeld, L. Kenneth Schoenfeld et ux., Herbert A. Schoenfeld et ux., and Oser Dreck Company, a corporation.The cases were consolidated for trial.At the close of the plaintiffs' case, the court granted motions for dismissal as to all the defendants except Oser Dreck Company.The trial proceeded as against it, and verdicts were rendered in favor of the plaintiffs.Except as to amounts, identical judgments were entered in the two cases.These judgments were in favor of plaintiffs as against Oser Dreck Company, and against them as to the other defendants.As to the latter, the judgments were as follows: 'It is therefore ordered that the above entitled action as to the defendants, Standard Furniture Company, a corporation, Berman Schoenfeld, L. Kenneth Schoenfeld and Ruth G. Schoenfeld, his wife, be, and the same is hereby dismissed.'Oser Dreck Company has not appealed.

Plaintiffs gave notice of appeal to Standard Furniture Company'from that portion of said judgments entered heretofore in the above entitled actions in favor of the defendant, Standard Furniture Company,' etc.

Respondent has moved to dismiss the appeal on the ground that notice of appeal was not served on Oser Dreck Company and the individual defendants.In support of the motion, respondent cites the following cases: Traders' Bank of Tacoma v. Bokien,5 Wash. 777, 32 P. 744;Dewey v. South Side Land Co.,11 Wash. 210, 39 P. 368;Cornell University v. Denny Hotel Co.,15 Wash. 433, 46 P. 654;Wax v. Northern Pacific R. Co.,32 Wash. 210, 73 P. 380;Davis v. Tacoma Railway & Power Co.,35 Wash. 203, 77 P. 209, 66 L.R.A. 802.The rule of those cases was that notice of appeal must be served on all parties who appeared in the action.That rule, however, was mitigated after the enactment of chapter 49, p. 79,Laws 1899(Rem.Rev.Stat. § 1734), so as to require notice of appeal only on parties to the record affected by the judgment.SeeSipes v. Puget Sound Electric R. Co.,50 Wash. 585, 97 P. 723.The case of Puget Sound Savings & Loan Ass'n v. Erickson,138 Wash. 578, 244 P. 972, also cited by respondent, illustrates the application of the modified rule.The implication in the cases of this class is that notice of appeal must be served on all parties affected by the judgment--whether favorably or unfavorably.In fact, the rule was so stated in Re Myhren's Estate,95 Wash. 101, 163 P. 388, 390: 'It is suggested that, if the appeal should be entertained and the decree of the lower court reversed, such a disposition of the case would redound to the benefit and advantage of the omitted parties.But this is not the test by which necessary parties to an appeal are determined.It is not for this court to presume to speak upon that question in behalf of litigants who seem to be satisfied with the decree of the lower court and who do not appeal therefrom.The suggestion that the interests of the omitted parties will be favorably affected by a reversal of the decree is an implied admission that their interests are involved, and the true criterion by which to determine necessary parties to an appeal is whether the interests of the parties in question will be affected by a reversal or a modification of the judgment, order, or decree from which the appeal is prosecuted.'

However the rule may have been stated from time to time subsequent to the enactment of chapter 49,Laws 1899, the practical application of the rule required service of notice of appeal only upon those parties to the record whose interests might be adversely affected by the decision of this court on the appeal.In Cole v. Washington Motion Picture Corporation,112 Wash. 548, 192 P. 972, 973, it was said: 'This court has held that the object and purpose of the Legislature was to require all interested parties to jointly prosecute their appeals and cross-appeals, so that the same cause might not appear in the appellate court by piecemeal.Sipes v. Puget Sound Elec. R. Co.,50 Wash. 585, 97 P. 723.It held in the same case, and has held in later cases, that this object was accomplished when all parties who appeared in the action and whose rights in the judgment or order appealed from could be adversely affected by the action of the appellate court were served, even though a party may be omitted who would be included by a literal interpretation of the statute.But further than this the court has not gone, it has uniformly insisted that all parties to an action or proceeding who have appeared therein and whose rights in the judgment or order appealed from may or can be adversely affected by the judgment of the appellate court must be served with the notice of appeal else the appeal will be ineffectual and a dismissal necessitated.The cases need not be here collected.Sufficient of them to illustrate the principle are found in the briefs of counsel and others will be found in the footnotes to the sections of the statute cited where found in the Code from which they are taken.'

This statement of the rule has since been expressly approved in Stone v. Brakes,172 Wash. 644, 21 P.2d 524, and, by implication at least, in United Truck Lines v. Department of Public Works,181 Wash. 318, 42 P.2d 1104.

In applying the rule to the situation here presented, it is to be remembered that Oser Dreck Company has not appealed from the judgments, and the individuals could not.SeeSipes v. Puget Sound Electric R. Co., supra.Nor have plaintiffs appealed from the judgments as against Oser Dreck Company.Whatever judgment this court may render on the appeal from the judgment dismissing the Standard Furniture Company from the actions can in nowise adversely affect Oser Dreck Company or the individual defendants.Sipes v. Puget Sound Electric R. Co., supra.It was therefore unnecessary to serve them with notice of appeal.The motion to dismiss the appeal is denied.

Respondent has also moved to strike the statement of facts, because notice of filing was not served on Oser Dreck Company and the individual defendants, as provided by Rem.Rev.Stat. § 389.The motion is denied.Such notice is not required to be served on parties who are not necessary parties to the appeal.Mogelberg v. Calhoun,94 Wash. 662, 163 P. 29.

Respondent has also moved to strike appellants' abstract of the record.While appellants have not condensed the testimony into narrative form to the extent they might have, we do not feel warranted in striking the abstract.The motion is denied.

On the merits, the following are the salient facts as disclosed by the record: For many years the respondent, Standard Furniture Company, has been the owner of lots 10, 11, and 12, block 17, Sarah A. Bell's second addition to Seattle, upon which was a three-story frame building known as the 'Denny House.'Prior to September, 1932, the premises were leased to a Mrs. Folcolt, who was purchasing from Standard Furniture Company, under a conditional bill of sale, some, if not all, of the furniture and furnishings in the house.Mrs. Folcolt became financially involved, and a receivership resulted.Standard Furniture Company repossessed the property and furniture.

At that time, the trustees of Standard Furniture Company were Berman Schoenfeld, Herbert A. Schoenfeld, and Melville Monheimer.Herbert A. Schoenfeld was vice president, and had particular supervision of the company's real estate holdings.Mr. Monheimer was the legal adviser of the company.Standard Furniture Company is wholly owned by the Schoenfeld family.Berman Schoenfeld and Herbert A. Schoenfeld were brothers.The latter died in April, 1933.Also active in the business of the company were the former's son, Berman Schoenfeld, Jr., and Herbert A. Schoenfeld's sons, L. Kenneth and Herbert.After Herbert A. Schoenfeld's death, Berman, Jr., became manager of the properties.He and Herbert A.'s sons were rotated on the board of trustees, and held the offices of vice president, treasurer and secretary.

In January of 1933, Mr. Monheimer, at the instance of Herbert A Schoenfeld, prepared articles of incorporation of Oser Dreck Company.These articles provided for 100 shares of no-par value.The trustees named in the articles were Berman Schoenfeld, Jr., and L. Kenneth Schoenfeld.Upon the consummation of incorporation, however, they resigned, and Monheimer and his law partner, Van Griffin, succeeded as trustees.These latter also subscribed to all of the capital stock.They paid for the stock by assigning to the company a leasehold interest in the Denny House, $150 in cash,...