Du Pont Cellophane Co., Inc. v. Kinney

• Decision Date: 01 November 1934
• Docket Number: 25310.
• Citation: Du Pont Cellophane Co., Inc. v. Kinney, 179 Wash. 270, 36 P.2d 1061 (Wash. 1934)
• Parties: DU PONT CELLOPHANE CO., Inc., v. KINNEY et al.
• Court: Washington Supreme Court

36 P.2d 1061

179 Wash. 270

DU PONT CELLOPHANE CO., Inc., v. KINNEY et al.

No. 25310.

Supreme Court of Washington

November 1, 1934

Department 2.

Appeal from Superior Court, Thurston County; Wright, Judge.

Action by the Du Pont Cellophane Company, Inc., against A. H. Kinney and others. Judgment for plaintiff, and defendant Kinney and certain codefendants appeal. On motions to strike certain affidavits in the transcript and dismiss the appeal.

Motion to strike affidavits denied and appellants granted additional time to file a brief.

Earl W Husted and Gordon D. Eveland, both of Everett, for appellants.

Tom W Holman, of Seattle, for respondent.

PER CURIAM.

A motion to strike certain affidavits brought up in the transcript on appeal herein because not made a part of any statement of facts proposed by appellants, to wit, the affidavits of Tom W. Holman, C. A. Tiffany, Allen Hitchings Roy Betts, and counter affidavits of Gordon D. Eveland Robert G. Davis, A. H. Kinney, and Iver H. Cederwall, is not well based for the reason that they are specifically referred to in an order modifying, in a certain particular, the original decree of the trial court made and entered on April 17, 1934. The matters are governed by our decisions in State v. Vance, 29 Wash. 435, 70 P. 34; Hayworth v. McDonald, 67 Wash. 496, 121 P. 984; Weaver v. Stinson (Wash.) 31 P.2d 510; State v Miller (Wash.) 32 P.2d 535; Webb v. Webb (Wash.) 34 P.2d 920.

The motion to strike the affidavits is therefore denied.

A motion is also made to dismiss the appeal because of failure to give notice of appeal to the surety on the bond given to the state of Washington, failure to give notice of appeal to the state of Washington, a codefendant in the lower court, failure to give notice of appeal to the secretary of state, a codefendant in the lower court, and omission on the part of appellants to serve and file their opening brief in the time prescribed by law.

The surety company was not a party appearing in the action in the lower court and had no interest therein. It was therefore unnecessary to serve it with a notice of appeal. Norbom Engineering Co. v. A. H. Cox & Co., 120 Wash. 675, 208 P. 87; Stone-Easter v. Seattle, 121 Eash. 520, 209 P. 687, 215 P. 56.

A notice of appeal is required to be served only upon a codefendant who has the right of appeal. The state and the secretary of state were not affected by the judgment entered against the principal appellant and therefore are not necessary parties on appeal. Sipes v. Puget Sound Electric Railway Co., 50 Wash. 585, 97 P. 723; Wellman v. Jensen, 123 Wash. 310, 212 P. 183; Thompson v. Mitchell, 128 Wash. 192, 222 P. 617; Sheffield v. Baker, 144 Wash. 1, 255 P. 924.

The failure to file briefs within the time required by rule and statute is...