Evans v. Cheyenne Cement Stone and Brick Company

Decision Date01 April 1912
Docket Number673
Citation122 P. 588,20 Wyo. 188
CourtWyoming Supreme Court

ERROR to the District Court, Laramie County; HON. CHARLES E CARPENTER, JUDGE.

Heard on motion to dismiss. The material facts are stated in the opinion.

Motion to dismiss denied.

M. A Kline, for defendant in error, in support of the motion to dismiss.

On an appeal from a joint judgment all parties affected by the judgment are necessary parties, and the failure to bring in such necessary parties is jurisdictional. (2 Cyc., 763, 764 785; 4 Ency. L. & P. 114; Maytin v. Vela, 216 U.S 598, 54 L. Ed., 632; Hardee v. Wilson, 146 U.S. 179, 36 L.Ed. 933; Loveless v. Ransom, 107 F. 626; Sipperly v. Smith, 155 U.S. 84, 39 L.Ed. 79; Ayres v. Polsdorfer, 105 F. 737; Owings v. Kincannon, 7 Pet. 399, 8 L.Ed. 727.) Having adopted our civil code from the State of Ohio, it was adopted with the construction then placed thereon by the Ohio courts. (2 Lewis' Suth. Stat. Constr. 783.) In that state it had been held that all defendants in a joint judgment are necessary parties to a petition in error, and the rule to that effect has been since followed in that state. (Smetters v. Rainey, 14 O. St. 287; Burke v. Taylor, 45 Id. 444, 15 N.E. 471; Kreis v. Drott, 67 O. St. 516; Sohn v. Loan Co., 67 O. St. 516; Abair v. Bank, 3 O. C. C. 290; Kreis v. Drott, 21 O. C. C. 790.) The same construction of the code has been adopted in Nebraska. (Wolf v. Murphy, 21 Neb. 472, 32 N.W. 303; Hendrickson v. Sullivan, 28 Neb. 790, 44 N.W. 1135; Andres v. Kridler, 60 N.W. 1014; Bates-Smith Inv. Co. v. Scott, 76 N.W. 1063.) And in Kansas and Oklahoma. (Vaught v. Bank, (Okl.) 111 P. 214; Strange v. Crismon, 22 Okl. 841, 98 P. 937; Board v. Lemley, (Okl.) 101 P. 109; Loan Co. v. Lumber Co., 53 Kan. 677, 37 P. 132; Paving Co. v. Botsford, (Kan.) 31 P. 1106; Inv. Co. v. Bank, 56 Kan. 49, 42 P. 321.) In this court it has been held that where an appeal by several parties from the State Board of Control is dismissed by the district court, and one of the appellants is made neither a party plaintiff nor party defendant to the petition in error, the petition is fatally defective in the absence of any excuse shown. (Johnston v. Irr. Co., 4 Wyo. 164, 33 P. 22.) The decisions generally agree with those in Ohio and the other states having the Ohio code. (McKnight v. McKnight, (Tex.) 124 S.W. 736; Clark v. Lowe (Tex.) 733; Handlin v. Dodt, 110 La. 936, 34 So. 881; Walsh v. Hill, (Ala.) 53 So. 746; Swafford v. Shirley, (Ga.) 66 S.E. 1022; Nichols v. Frank, (Fla.) 52 So. 146; Haymaker v. Schneck, 160 Ind. 443, 67 N.E. 181; Bassett v. Loewenstein, (R. I.) 49 A. 41; Tanquary v. Howard, 35 Colo. 125, 83 P. 647; McIntyre v. Sholty, 139 Ill. 171, 29 N.E. 43; Lydon v. Godard (Ida.) 51 P. 459; Griffin v. So. Pac. Co., (Utah) 87 P. 1091; Cooke v. Cooke, (Ill.) 62 N.E. 536; Scott v. Coal & Coke Co., (Ill.) 77 N.E. 122; Harrison v. Constr. Co., (Ind.) 83 N.E. 256; Queen v. Lipinsky, (Ind.) 45 N.E. 617; Trust Co. v. Ry. Co., 177 F. 854; Knight v. Acton, (Ia.) 109 N.W. 1089; Richardson v. Greenwood Twp., (Kan.) 50 P. 941; Lovejoy v. Ireland, 17 Md. 525, 79 Am. Dec. 667.)

All necessary parties must be brought in within the time limited by statute for bringing the proceeding in error or it will be dismissed. (Elliott on Appellate Proc., sec. 162; Lowe v. Delaney, (Fla.) 44 So. 710; Daughters v. Ins. Co., (Kan.) 62 P. 428; Strange v. Crismon, (Okl.) 98 P. 940; Bridge v. Hotel Co., (Kan.) 61 P. 754; Smith v. Mfg. Co., (Ky.) 58 S.W. 500; Curtis v. Atkinson, (Neb.) 46 N.W. 91; Farney v. Hamilton County, 75 N.W. 44; Queen v. Lipinsky, (Ind.) 45 N.E. 617; Holleran v. Ry. Co., (Ind.) 28 N.E. 549; Smetters v. Rainey, supra; Burke v. Taylor, supra; Patterson v. Hamilton, 26 Hun, 665; Seibel v. Bath, 5 Wyo. 409.) There is no vested right in a statutory right of appeal, and a statute prescribing the method of appeal is to be strictly construed. (Lewis' Suth. Stat. Constr., 567.)

Lee & Mallin, contra.

If the surety was a necessary party to the motion for new trial filed in the district court, his absence in this court is waived by the failure of objection in the lower court. (Bank v. Green, 40 O. St. 431; Cairnes v. Knight, 17 O. St. 68.) Statutory proceedings in error do not require the joinder of parties unless the statute so provides, and on appeal from an order overruling a motion for new trial the parties to the motion are the only necessary parties. (Mayor, &c., v. Long, 31 Mo. 369; In re Luscombe's Will, 109 Wis. 186; Cooper Mfg. Co. v. Delahunt, 51 P. 649; In re Ryer's Estate, 42 P. 1082; Watson v. Sutro, 20 P. 88; Bliss v. Grayson, 59 P. 888.) Where a judgment is several or severable one party may appeal without joining the other. (2 Ency. Pl. & Pr. 186-188; Hanrick v. Patrick, 119 U.S. 163; Albuquerque v. Zeiger, 25 P. 787; So. Portland L. Co. v. Munger, 54 P. 815.) Joinder must be essential to have any effect on appeal. (2 Cyc., 784.) The surety is not an essential party for the reason that the judgment entered is severable, and one party alone may appeal from it; and for the further reason that he will not be adversely affected by any order made by this court, that is, his liabilities will not be increased. He is not interested in the merits of the case, and has no interest in the question as to whether or not the defendant in error complied with the terms of the agreement in controversy.

POTTER, JUSTICE. BEARD, C. J., and SCOTT, J., concur.



The petition in error in this case was filed in the name of David P. Evans as plaintiff in error against the Cheyenne Cement Stone and Brick Company, a corporation, as defendant in error, and complains of a judgment recovered in the District Court for Laramie County against the plaintiff in error by the defendant in error. A motion to dismiss was filed by the defendant in error on the ground that the judgment complained of is a joint judgment against the plaintiff in error and one Albert Chapman, and that the latter did not join in the motion for new trial in the court below, nor in the petition in error. The case has been heard upon that motion.

It appears that the action was originally commenced before a justice of the peace by the defendant in error against Evans, and that the latter appealed to the district court from a judgment rendered against him by the justice, the undertaking on appeal being signed by said Chapman as surety. Upon a trial de novo in the district court judgment was again rendered in favor of the plaintiff, defendant in error here, the relevant part of the judgment entry reading as follows: "And it further appearing * * * from the papers and pleadings of the parties as filed herein, that said action was begun in the justice court of W. F. Pagett, a justice of the peace, * * * and that said cause is now in this court upon an appeal taken from a judgment rendered in said justice court against the defendant herein, and that Albert Chapman is surety on the undertaking on appeal from said judgment. It is therefore ordered, adjudged and decreed by the court that the plaintiff do have and recover from said defendant, David P. Evans, and Albert Chapman, his surety, the sum of one hundred sixty three and 28/100 dollars ($ 163.28) and its costs taxed at $ 9.65, and that plaintiff have execution therefor according to law; to all of which findings and judgment the said defendant, by his attorneys, now and here excepts."

Upon appealing to the district court from a judgment of a justice of the peace, the appellant is required to either pay all the costs up to the time of the transmission of the papers to the district court, or give bond to secure the same, and such bond or undertaking may be included in the undertaking given to stay execution. (Comp. Stat. sec. 5261.) The undertaking to stay execution is required to be conditioned for the payment of the amount of the judgment, interest and costs that may accrue. (Id. sec. 5288.) By the undertaking in this case the appellant and surety undertook and acknowledged themselves to be firmly bound to the appellee, "that the appellant shall prosecute his appeal to effect with unnecessary delay, and that if judgment be rendered against said appellant or his appeal be dismissed, he shall satisfy said judgment and costs."

The statute provides that in all cases of appeals from a justice's court, if the judgment of the justice be affirmed, or if, on trial anew in the district court, the judgment be against the appellant, such judgment shall be rendered against him and his sureties in the undertaking. (Comp. Stat., sec. 5275.) By section 5276 it is provided that if, upon execution upon such judgment, the principal shall not pay the same, and the officer cannot find sufficient property of the principal to satisfy the same, the execution shall be enforced against the sureties in the undertaking, and that the officer shall specify in his return by whom the money was paid and the time thereof. Section 5277 provides in substance that the surety, who may have paid the whole or any part of such judgment, shall, on motion within one year from the return day of the execution, be entitled to a judgment against the principal for the amount so paid with legal interest thereon from the time of payment.

As we have no statute prescribing who shall constitute necessary or proper parties to a proceeding in error in this court, the question must be determined upon rules applicable to the case in hand, and the provisions of the code so far as applicable by way of analogy relating to parties to civil action. The code provides as to civil actions that an action must be brought in the name of the real party in interest, with certain stated exceptions; that all persons having an...

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    ... ... Akin, the Wyoming Development Company and ... others. Heard on motion of the Wyoming ... In Evans v ... Cheyenne Co., 20 Wyo. 188, held that a ... ...
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    ...was the real party in interest. 13 C. J. 705, 707. An action must be prosecuted in the name of the real party in interest. Evans v. Company, 20 Wyo. 188; Hecht v. Company, 19 Wyo. 10; Wyoming Co. v. LaPorte, 26 Wyo. 522; Hay v. Hudson, 31 Wyo. 150; McDonald v. Mulkey, 32 Wyo. 144; Tuttle v.......
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