Griffin v. Southern Pac. Co.
Decision Date | 24 December 1906 |
Docket Number | 1739 |
Citation | 31 Utah 296,87 P. 1091 |
Court | Utah Supreme Court |
Parties | GRIFFIN v. SOUTHERN PACIFIC CO |
Appeal from District Court, Second District; J. A. Howell, Judge.
Action by Pauline Griffin as administratrix of the estate of H. J Griffin, deceased, against the Southern Pacific Company and another. From a judgment for plaintiff, the railroad company appeals.
APPEAL DISMISSED, AND JUDGMENT AFFIRMED.
P. L Williams, Geo. H. Smith, and Jno. G. Willis for appellant.
A. W Agee for respondent.
Plaintiff, as administratrix of the estate of Herbert J. Griffin, brought this action against the Southern Pacific Company and Charles E. Austin to recover damages for the death of deceased on December 1, 1903, resulting from injuries received by him while in the employ of the defendant company as a locomotive fireman. The Southern Pacific Company appeared and filed its answer in the case. The defendant, Charles E. Austin, although duly served with process, never made any appearance, and his default was duly entered of record. A trial was had which resulted in a verdict against defendants jointly and in favor of plaintiff for the sum of $ 8,000. Judgment was duly entered on the verdict in favor of plaintiff and against defendants jointly. To reverse this judgment the Southern Pacific Company alone appeals. Respondent now challenges the jurisdiction of this court to hear and determine the questions raised by the appeal on the ground that appellant's codefendant, Austin, was not served with notice of appeal nor in any way made a party to the appeal. This court, in harmony with the great weight of authority, has repeatedly held that every party to an action whose interests may be adversely affected by an appeal of such action, must be made a party to the appeal. (Bank v. Loan & Building Co., 13 Utah 189, 44 P. 1043; Rache v. Stanley, 15 Utah 314, 49 P. 648; Stephens v. Stevens, 27 Utah 261, 75 P. 619; Nelden-Judson Drug Co. v. Bank, et al. 31 Utah 42, 86 P. 498.)
In the case of Bank v. Loan & Building Co., supra, this court, in harmony with the weight of authority, held that an adverse party, within the meaning of the statute, includes "all defendants whose interests would be injuriously affected by a reversal or modification of the judgment." This doctrine was reaffirmed in the case of Rache v. Stanley, supra. The question, therefore, arises: Might the reversal of the judgment injuriously affect Austin? This court cannot indulge in the presumption that it would not. This action was brought to recover the sum of $ 25,000, and, as hereinbefore stated, judgment was entered for $ 8,000, and as Austin failed to appeal, it is presumed that he is satisfied with the judgment. Belden v. Andrews (Sup.), 43 N.Y.S. 587; Williams v. Starr et al., 5 Wis. 534. A new trial might result in a judgment being entered for a sum far in excess of the amount of the judgment appealed from, in which case, it is obvious that Austin's interests would be materially and injuriously affected by a reversal of the case; and this, too, regardless of whether the case is reversed as to both of the defendants, or as to the Southern Pacific Company only.
The Supreme Court of California in the case of Senter v. De Bernal, 38 Cal. 637, in construing a statute similar to the one under consideration, said:
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