Dewey v. South Side Land Co.

• Decision Date: 15 February 1895
• Citation: Dewey v. South Side Land Co., 39 P. 368, 11 Wash. 210 (Wash. 1895)
• Parties: DEWEY ET AL. v. SOUTH SIDE LAND CO. ET AL.
• Court: Washington Supreme Court

39 P. 368

11 Wash. 210

DEWEY ET AL. v. SOUTH SIDE LAND CO. ET AL.

Supreme Court of Washington

February 15, 1895

Appeal from superior court, Pierce county; W. H. Pritchard, Judge.

Action by O. B. Dewey and another against the South Side Land Company, the Westminster Presbyterian Church, and others, to foreclose a mechanic's lien. Judgment for plaintiff Dewey, and defendant the Westminster Presbyterian Church appeals. Appeal dismissed.

G. C Britton and C. P. Bennett, for appellant.

Law &amp Crandall, for respondent.

ANDERS J.

This action was instituted by the respondent and one Fenton to establish and foreclose alleged mechanics' liens on a church building. There were seven different parties defendant, all of whom, except the South Side Land Company appeared and defended in the court below. Fenton's case was not prosecuted, as his claim had been settled or assigned prior to the time of the trial. From a judgment in favor of the respondent, the Westminster Presbyterian Church alone appealed. None of the other defendants joined in the appeal nor does it appear that the notice of appeal was ever served on any of them. For this reason the respondent moves to dismiss this appeal.

The notice of appeal was not given at the time the judgment was rendered, and in such cases the law under which the appeal was taken provides that the notice of appeal shall be served upon all parties who have appeared in the action or proceeding. Laws 1893, p. 122. This provision of the present statute in respect to the serving of notices of appeal is substantially the same as that contained in former statutes, under which this court has many times held that a failure to give the required notice entitles the respondent to a dismissal of the appeal upon motion. Bellingham Bay Nat. Bank v. Central Hotel Co., 4 Wash. 642, 30 P. 671, and cases cited; Bank v. Bokien, 5 Wash. 777, 32 P. 744.

The appellant, however, contends that, inasmuch as the same attorneys appeared for all of the defendants, it was not necessary to serve the notice upon them, as they already possessed all the information which the service of notice would have imparted. But we held in Bank v. Bokien, supra, that the fact that the attorney for appellant was also the attorney for one of the other defendants was no excuse for not serving such a defendant with notice of the appeal; and we perceive no reason for overruling the decision there made.

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