Hutton v. Davis
| Decision Date | 18 December 1935 |
| Docket Number | 6283 |
| Parties | BOBBY DEAN HUTTON, Respondent, v. RALPH DAVIS, Sub-contractor for Tony Marrazzo, employer, and STATE INSURANCE FUND, surety, Appellants |
| Court | Idaho Supreme Court |
APPEAL AND ERROR-NOTICE OF APPEAL-FAILURE TO SERVE ADVERSE PARTY-GUARDIAN AS ADVERSE PARTY-APPEAL DISMISSED.
1. "Adverse party," within statute requiring notice of appeal to adverse party, is any party to action whose interests might be prejudicially affected by reversal or modification of judgment appealed from (I. C. A., sec 11-202).
2. Service of notice of appeal on all adverse parties, or their attorneys, is necessary to supreme court's jurisdiction of appeal (I. C. A., sec. 11-202).
3. Guardian, to whom compensation award to infant dependent of deceased employee was payable, held "adverse party" to appeal from judgment affirming award within statute requiring notice of appeal to adverse party, where terms of award required payment thereof to guardian of infant (I. C A., sec. 11-202).
4. Supreme court held without jurisdiction of appeal from award of compensation to infant dependent of deceased employee where infant did not appear by general guardian or guardian ad litem, and notice of appeal was not served on general guardian appointed to receive compensation payments notwithstanding that general guardian appointed attorney to represent infant on appeal (I. C. A., secs. 5-306, 11-202).
APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Bert A. Reed, Judge.
Appeal from judgment of district court affirming award by industrial accident board of compensation to dependent grandson of deceased employee. Dismissed.
Appeal dismissed.
J. Ward Arney and P. C. O'Malley, for appellants.
Ben F Tweedy, for respondent.
No authorities cited on points decided.
William Hutton was killed in an accident which arose out of and in the course of his employment by Ralph Davis who held a sub-contract from Tony Marrazzo for the work he was doing. Davis had no industrial accident insurance and State Insurance Fund was Marrazzo's surety and is liable for any award made to the dependents of the deceased employee. The son of deceased, 29 years old, his daughter, 31 years old, and his grandson, Bobby Dean Hutton, 2 years and 10 months old, made claim for compensation as his dependents. The State of Idaho, on relation of Harry C. Parsons, state auditor, made claim pursuant to I. C. A., sec. 43-1101, subsec. 6, wherein it is provided:
"In case there are no dependents of deceased employee, the employer shall pay into the state treasury to be deposited in the industrial administration fund the sum of $ 1,000."
The industrial accident board disallowed the claim of the state and of the son and daughter of deceased, and awarded to his grandson, respondent herein, compensation at the rate of $ 6 a week during the continuance of his condition of actual dependency, but not to exceed a period of 400 weeks from and after the date of the death of his grandfather, "said award to be paid to a legal guardian of the said minor, Bobby Dean Hutton, when such guardian is appointed and qualified." From that award the state, the employer and the insurance fund appealed to the district court. No appeal was taken by the son or daughter of deceased. The district court affirmed the award, and the employer and insurance fund have attempted to appeal to this court from the judgment of affirmance.
No one has appeared herein as general guardian for Bobby Dean Hutton and no guardian ad litem has been appointed for him. I. C. A., sec. 5-306 contains the following:
"When an infant or an insane or incompetent person is a party, he must appear either by his general guardian or by a guardian ad litem appointed by the court in which the action is pending in each case, or by a judge thereof, or a probate judge. "
The infant respondent, not having appeared by general guardian or by a guardian ad litem, is without legally constituted representation on this appeal. Following is the proof of service of notice of appeal to this court:
A like receipt for copy of notice of appeal appears to have been signed by Ben F. Tweedy, attorney for respondents.
The son and daughter and infant grandson of deceased and the State of Idaho, on relation of Harry C. Parsons, state auditor, were named as respondents in the notice of appeal, and it was addressed to them, although none of them except the grandson was successful before the board or the district court, nor could the interests of either, other than the grandson, be prejudicially affected by a reversal or modification of the judgment. No reference is made in the notice of appeal to a general guardian or a guardian ad litem for the infant respondent, and service of notice of appeal was not made on anyone the law recognizes as having authority to represent him.
I. C. A., sec. 11-202 provides:
"An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered, a notice stating the appeal from the same, or some specific part thereof, and serving a similar notice on the adverse party, or his attorney. "
Adverse party, as that term is used in the statute, has been...
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