Johnston v. Geary
| Decision Date | 20 June 1934 |
| Docket Number | 5089 |
| Citation | 33 P.2d 757,84 Utah 47 |
| Court | Utah Supreme Court |
| Parties | JOHNSTON v. GEARY et al |
Appeal from district Court, Third District, Salt Lake County; James H. Wolfe, Judge.
Action by Mrs. H. E. Johnston against Edward G. Geary and others. From a judgment for plaintiff, defendants appeal, and plaintiff moves to dismiss the appeal.
APPEAL DISMISSED.
Hurd & Hurd, of Salt Lake City, for appellants.
Badger Rich & Rich and Arthur J. Mays, of Salt Lake City, for respondent.
The plaintiff and respondent on a promissory note recovered a joint judgment against all of the three defendants and appellants in the sum of over $ 2,200, attorney's fees and costs. All of the defendants prosecuted a joint appeal from the judgment by serving and filing a joint notice of appeal, jointly transmitting and filing in this court a transcript of the record on appeal and filing in joint assignment of errors. To perfect an appeal under our statute, Comp. Laws Utah 1917, § 6997, requires an undertaking on appeal with at least two sureties to the effect that the appellant will pay all costs and damages which may be awarded against him on the appeal or a dismissal thereof, not exceeding $ 300. No such undertaking was given by any of the appellants. However, one of them, Mrs. Geary, an indorser of the note, for and on her behalf filed an affidavit of impecuniosity, as by sections 2577 and 6996, Comp. Laws Utah 1917, provided, in which case, "no bond on appeal shall be required." The affidavit was filed expressly for and only on her behalf and not for or on behalf of either of the other defendants, neither of whom had given an undertaking or filed an affidavit of impecuniosity.
For such reason a motion is made by the respondent to dismiss the appeal. It is based on the ground that, since the appeal is a joint and not a joint and several appeal from a joint judgment, and upon a joint and not a joint and several assignment of errors, and no attempt made to perfect the appeal other than by the filing of an affidavit of impecuniosity by one of the defendants, the appeal is not perfected in compliance with the statute in such case made and provided. It, of course, is conceded that to perfect an appeal requires, not only the service and filing of a notice of appeal, but also the filing of an undertaking, or a waiver, or a deposit in lieu thereof, unless the party or parties appealing are by statute exempt from giving an undertaking. Otherwise the appeal is not perfected and this court without jurisdiction of the case. Elliott's Appellate Procedure, 449; Town of Flagstaff v. Gomez, 23 Ariz. 184, 202 P. 401, 23 A. L. R. 661; Duncan v. Times-Mirror Co., 109 Cal. 602, 42 P. 147; Robinson v. Templar Lodge No. 17, etc., 114 Cal. 41, 45 P. 998. While the motion to dismiss is not seriously resisted as to the two defendants not filing an undertaking nor an affidavit of impecuniosity, yet, as to the defendant, Mrs. Geary, who filed an affidavit of impecuniosity, the motion is especially resisted. Upon an examination of the authorities, we find the weight of authority to be that, where a joint appeal, and not a joint and several appeal, is taken by several defendants from a joint judgment, and upon a joint and not a joint and several assignment of errors, and the appeal not perfected by all of them, either by all giving or executing a joint or a separate undertaking, unless waived, or all filing an affidavit of impecuniosity, the appeal must be dismissed; the filing of an affidavit of impecuniosity by only one of the appellants being insufficient. Tanquary v. Howard, 35 Colo. 125, 83 P. 647; Creswell v. Herr, 9 Colo. App. 185, 48 P. 155; Fuller v. Swan-River Placer Co., 5 Colo. 123; Diamond Tunnel Gold & Silver Min. Co. v. Faulkner, 14 Colo. 438, 24 P. 548; Hopkins v. Satsop Ry. Co., 18 Wash. 679, 52 P. 349; First Congregational Church of Harvard v. Page, 255 Ill. 267, 99 N.E. 453; Hileman v. Beale, 115 Ill. 355, 5 N.E. 108; 8 Bancroft's Code Prac. and Rem. 8467.
These cases teach that, though parties may sever in their appeal, but in case of a joint appeal it must be so prosecuted, or the appeal must be dismissed. This court has not as yet directly passed upon the question, except by analogy, that, where several parties jointly assign errors, they will encounter defeat unless the assignment is good as to all. McGuire v. State Bank of Tremonton, 49 Utah 381, 164 P. 494. Such doctrine generally finds support elsewhere. Elliott's Appellate Procedure, § 318; 3 C. J. 1352.
What may be said to be against the general rule as stated, that on a joint appeal by several appellants where only one gave an undertaking on appeal the appeal is not perfected and must be dismissed, is the case of Meyer v. City of San Diego, 130 Cal. 60, 62 P. 211. There two defendants, the city of San Diego and the Southern California Mountain Water Company, a corporation, jointly gave notice of appeal from a judgment rendered against them. No undertaking on appeal was given by either. On that ground a motion was made to dismiss it. It was granted as to the water company, but denied as to the city, for the reason that under the statute no undertaking as to the city was required. The holding thus was that as to the water company the appeal was ineffectual for any purpose, but as to the city, inasmuch as it was exempt from giving an undertaking, the appeal was upheld as to it. In so ruling the joint appeal was treated as though a separate appeal had been taken by the city, without considering the distinction between or the effect of a joint appeal and a separate or a joint and several appeal, as was considered in other jurisdictions and as shown by the cases heretofore cited.
There, however, is this further distinction between the Meyer v. City of San Diego Case and the case in hand. As recognized by all of the authorities, the requirement of security by all of the appellants is to protect the respondent against damages and costs, if the judgment appealed from be affirmed or the appeal dismissed. The principal reason exempting municipalities and the state from giving an undertaking on appeal is because of the ability of the municipality or the state without an undertaking to respond in whatever damages and costs may be incurred by the appeal in case the judgment is affirmed or the appeal is dismissed. Thus, where a municipality or the state appeals, or is one of the appellants, without an undertaking on appeal, the respondent still is fully protected against damages and costs. But a proceeding in forma pauperis stands on a different footing. In jurisdictions, as here, though a statute authorizes appeals or proceedings in error in forma pauperis on filing an affidavit of poverty or inability to procure sureties, yet, where there are several appellants or plaintiffs in error, one on a joint appeal cannot alone make affidavit of poverty and appeal or bring error in forma pauperis. 3 C. J. 1125. The rule in such respect is well stated by the headnote in the case of Walker v. Equitable Mortgage Co., 114 Ga. 862, 40 S.E. 1010, that:
In the case of Ostrander v. Harper, 14 How. Prac. (N.Y.) 16, the court said:
If a pauper has cause for appeal, and though it be considered he alone may appeal from a joint judgment rendered against him and others, let him alone prosecute a separate appeal in forma pauperis, and not voluntarily unite in a joint appeal and in a joint assignment of errors with the hope or expectation gratuitously to carry his responsible and solvent companions for their benefit and advantage on proceedings in forma pauperis. Neither the letter nor the spirit of the statute is intended for any such purpose.
Let the appeal be dismissed. Such is the order.
A point is made that we may not take cognizance of the affidavit of impecuniosity filed by Mrs. Geary though transmitted by the clerk below with the transcript of the record on appeal to this court, because the affidavit was not a part of the judgment roll nor settled in a bill of exceptions and hence we may not judicially know that the affidavit was made alone for and on her behalf and looking alone to the certificate of the clerk below the language thereof "that the appellant has made and filed an affidavit as provided by ...
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Zion's Sav. Bank & Trust Co. v. Mountain-Lakes Poultry Farms, Inc.
...318). Holding that the joint assignment of errors was of no avail to the bank, we held that it likewise could not avail Cole. In Johnston v. Geary, supra, we held where the appeal and assignments were joint and the appeal had been perfected by only one of the joint appellants the appeal wou......