Fisher v. Chaffee

• Decision Date: 17 October 1895
• Citation: Fisher v. Chaffee, 64 N. W. 662, 96 Iowa 15 (Iowa 1895)
• Parties: MURRAY FISHER, a Minor, by His Guardian, WILLIAM BRADLEY, v. H. L. CHAFFEE, et al., Defendants, ROBERT FULLERTON, Appellant
• Court: Iowa Supreme Court

64 N.W. 662

96 Iowa 15

MURRAY FISHER, a Minor, by His Guardian, WILLIAM BRADLEY, v. H. L. CHAFFEE, et al., Defendants, ROBERT FULLERTON, Appellant

Supreme Court of Iowa, Des Moines

October 17, 1895

Appeal from Polk District Court.--HON. W. F. CONRAD, Judge.

Action on a guardian's bond. From a judgment against all defendants, the defendant Fullerton alone appeals.--Dismissed.

Motion sustained, and appeal dismissed.

Berryhill & Henry for appellant.

W. G Harvison for appellee.

OPINION

Kinne J.

I.

Appellee files a motion to dismiss the appeal because no notice was served by appellant Fullerton upon either of his codefendants. As we have reached the conclusion that this motion must be sustained, we shall only set out the facts upon which said motion is based. The petition alleged the appointment of the defendant Chaffee as guardian of Murray Fisher, a minor; the execution of the usual bond signed by the defendants Fullerton and Vertrees as sureties; the receipt by Chaffee of two thousand and forty-seven dollars belonging to said minor, on May 15, 1886; and avers that he has neglected to account therefor; that he has failed to comply with certain orders of the court; that he was removed, and the present guardian appointed. Defendants Fullerton and Vertrees, only, answer. They plead that in February, 1887, Chaffee, as such guardian, filed his report which was duly approved by the judge of the court; that said report showed the receipt of two thousand dollars of plaintiff's money; and that the same was loaned to Chaffee & Stark, upon the personal note of said firm, without other security; that said money had never been collected by Chaffee as guardian, and was a valid claim against said firm. Other facts appear in the record, but, for the purposes of the question presented by this motion, we need only state that, after a trial had, a judgment was entered against all of the defendants, from which Fullerton alone appeals. No notice of the appeal was served by Fullerton upon either of his codefendants.

II. Code, section 3174, provides: "A part of several co-parties may appeal; but in such a case they must serve notice of the appeal upon all the other co-parties, and file the proof thereof with the clerk of the supreme court." It has been held that a failure to serve the notice above provided for is not jurisdictional, but the court can consider such questions in the case as affect only the rights and interests of the appellant and the adverse party. Wright v. Mahaffey, 76 Iowa 96 (40 N.W. 112); Moore v. Held, 73 Iowa 538 (35 N.W. 623); Kellogg v. Colby, 83 Iowa 513 (49 N.W. 1001); Soukup v. Investment Co., 84 Iowa 448 (51 N.W. 167); Day v. Insurance Co., 77 Iowa 343 (42 N.W. 312); Payne v. Raubinek, 82 Iowa 587 (48 N.W. 995); Wolfe v. Jaffray, 88 Iowa 358 (55 N.W. 91); Ash v. Ash, 90 Iowa 229 (57 N.W. 862); Chase v. Christenson...