Glenn v. Aultman & Taylor Machinery Company

• Decision Date: 02 October 1917
• Citation: 30 Idaho 727,167 P. 1163
• Court: Idaho Supreme Court
• Parties: FRED W. GLENN, Respondent, v. AULTMAN & TAYLOR MACHINERY COMPANY, a Corporation; CHARLES H. DOBSON, Defendants, and W. F. FRAMBACH, Appellant

167 P. 1163

30 Idaho 727

FRED W. GLENN, Respondent, v. AULTMAN & TAYLOR MACHINERY COMPANY, a Corporation; CHARLES H. DOBSON, Defendants, and W. F. FRAMBACH, Appellant

Supreme Court of Idaho

October 2, 1917

NOTICE OF APPEAL-SERVICE OF-FAILURE TO NAME ADVERSE PARTY IN NOTICE-ABSENCE OF CERTIFICATE FROM TRANSCRIPT-DISMISSAL.

1. Where one of several codefendants appeals from the judgment or order of the trial court, service of notice of appeal upon such codefendants is essential to the validity of his appeal since they are adverse parties to the extent that their interests would be affected by the result of such appeal.

2. Where a notice of appeal is addressed to certain parties naming them, its legal effect is limited to such parties only.

3. An appeal will be dismissed where it appears that the notice of appeal has not been served upon all of the adverse parties whose interest might be affected by a reversal or modification of the judgment.

4. Where a transcript on appeal does not contain a certificate from either the trial judge, the clerk or the attorneys that it contains all the records, papers and files used or considered by the trial judge upon the hearing of a motion to correct the judgment, as required by sec. 4821, Rev. Codes and Rule 24 of the rules of this court, the appeal must be dismissed.

APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County. Hon. Wm. A. Babcock, Judge.

Action to recover for services rendered. Judgment for plaintiff. Appeal dismissed.

Appeal dismissed. Costs awarded to respondent.

Turner K. Hackman, for Appellant.

We rely upon the case of Weeter Lumber Co. v. Fales, 20 Idaho 255, Ann. Cas. 1913A, 403, 118 P. 289, and contend that under that case even were Dobson a resident of this state, he would not need personal notice, and that it is a matter for him to settle as to whom he wants as his attorney.

Counsel for Frambach also represents Dobson, the nonresident, as well as the Aultman & Taylor Machinery Company, the principals and is ready and willing and has ample authority to bind Dobson, the nonresident, and the Aultman & Taylor Company to abide by any judgment rendered by this court.

Sweeley & Sweeley, for Respondent.

The appeals of Frambach taken from the order of June 1st must be dismissed. The record shows that as to these appeals Dobson is an adverse party, and that in neither appeal was notice served on him. (Jones v. Quantrell, 2 Idaho 153, 9 P. 418; Coffin v. Edgington, 2 Idaho 627, 23 P. 80; Diamond Bank v. Van Meter, 18 Idaho 243, 21 Ann. Cas. 1273, 108 P. 1042, and cases cited in opinion; Miller v. Wallace, 26 Idaho 373, 143 P. 524; State Bank v. Watson, 27 Idaho 211, 148 P. 470.)

Although a party has defaulted, if an appeal affects his rights, he is to be regarded as an adverse party and is entitled to notice. (Titiman v. Alamance Mining Co., 9 Idaho 240, 74 P. 529; Baker v. Drews, 9 Idaho 276, 74 P. 1130.)

BUDGE, C. J. Morgan and Rice, JJ., concur.

OPINION

BUDGE, C. J.

The facts out of which this appeal arose are the same as those involved in Glenn v. Aultman & Taylor Machinery Co., ante, p. 719, 167 P. 1163, and reference may be had thereto for a more detailed statement of the facts.

This is a separate appeal by the defendant Frambach from an order correcting the judgment. From the record it appears that on June 1, 1917, Frambach served and filed a notice of appeal: First, from the judgment; second, from the order overruling the motion for a new trial; and, third, from the order correcting the judgment by inserting therein the name of the defendant Frambach, which latter order was entered June 1, 1917.

The transcript on file does not contain a copy of the notice of appeal, and as there are two separate notices of appeal, filed and served by the defendant Frambach, it is difficult to determine which one is the perfected notice. However, the appeal being fatally defective, we will not pursue this inquiry further.

On July 5, 1917, defendant Frambach filed another or a second notice of appeal, restricting it to the order made June 1, 1917, which was the order made by the trial judge correcting the judgment by inserting therein the name of the defendant Frambach. This is probably the appeal which has been perfected, as upon the same day an undertaking in support of one of the Frambach appeals was duly filed, and a praecipe from the defendant Frambach was delivered to the clerk of the court and the transcript thereon prepared.

As far as appears from the record, neither of these notices of appeal was served on Dobson. The attorney for appellant contends that the service of the notice of appeal upon Dobson was unnecessary, for the reason that he is and was the attorney for both Dobson and Frambach in the court below, and that he was therefore not required to serve himself with the notice of appeal. An examination of the record properly before us discloses...