Langley v. Devlin

• Decision Date: 24 October 1916
• Docket Number: 13434.
• Citation: 160 P. 646,93 Wash. 236
• Parties: LANGLEY et al. v. DEVLIN et al.
• Court: Washington Supreme Court

160 P. 646

93 Wash. 236

LANGLEY et al. v. DEVLIN et al.

No. 13434.

Supreme Court of Washington, En Banc.

October 24, 1916

Appeal from Superior Court, Spokane County; Wm. A. Huneke, Judge.

Action by W. J. Langley and another against A. J. Devlin and another. Judgment for the defendants, and plaintiffs appeal. Motion of defendants to dismiss the appeal denied.

See also, 87 Wash. 592, 151 P. 1134.

Cannon & Ferris, of Spokane, for appellants.

Robertson & Miller, of Spokane, John P. Gray, of Coeur D'Alene Idaho, and Post, Avery & Higgins, of Spokane, for respondents.

ELLIS J.

This action was brought by nonresident plaintiffs, seeking among other things, to enjoin the sale of certain stocks. They were compelled to furnish a bond for costs, upon demand of the defendants, as required by Rem. & Bal. Code, § 495. The trial court entered a decree vacating the injunction. No judgment was entered against the surety upon the costs bond. Plaintiffs appealed. The notice of appeal was served upon the defendants, but not upon the surety in the plaintiffs' costs bond. Defendants, respondents here, seeking to invoke the rule announced in Shippen v. Shippen, 158 P 247, have moved that the appeal be dismissed. That decision however, is not controlling upon the record here. It is obvious that the interest of the appellants and that of the surety on their costs bond, so far as the latter ever had any interest as a contractual party to the action, are precisely the same.

The requirement of service of notice of appeal on any party having interest identical with appellant is only to enable all parties, 'similarly affected by the judgment or order appealed from' and who might have joined in the original notice of appeal, to join in the appeal by an independent notice within ten days after service on them of the original notice, thus avoiding successive appeals in the same action. Rem. & Bal. Code,§ 1720; Peck v. Peck, 76 Wash. 548, 562, 137 P. 137.

But the plaintiffs, appellants here, and the surety are not similarly affected by the judgment or order appealed from. No judgment was entered against the surety. It is in no manner affected by the judgment as rendered, and, in the nature of the case, cannot be injuriously affected either by an affirmance or reversal of that judgment in this court. If the judgment be affirmed on the merits, respondents can only secure a judgment against the surety on the nonresidents' bond for costs by an independent action on that bond, if, indeed, all right to such a judgment has not been lost by the failure to take judgment on the bond at the time prescribed by the statute, namely, 'at the same time' when the judgment was entered against the party 'primarily liable.' Rem. & Bal. Code, § 496. As to whether that right is lost, we express no opinion. The question is not before us, and would not be before us even had appellants served their notice of appeal upon the surety.

If, on the other hand, the judgment be reversed, the surety will be conclusively relieved of all liability upon the costs bond. Herein lies the plain distinction between this case and the case of Shippen v. Shippen, supra. There the party in whose favor the costs bond ran, having suffered defeat in the trial court, could only entitle...