Lind v. Lambert

• Decision Date: 31 March 1925
• Parties: C. E. LIND, Respondent, v. J. F. LAMBERT, Appellant
• Court: Idaho Supreme Court

236 P. 121

40 Idaho 569

C. E. LIND, Respondent, v. J. F. LAMBERT, Appellant

Supreme Court of Idaho

March 31, 1925

APPEAL AND ERROR-MOTION TO DISMISS-ADVERSE PARTIES-NOTICE OF APEAL-SERVICE.

1. An adverse party within the meaning of C. S., sec. 7153, is any party who would be prejudicially affected by a modification or reversal of the judgment appealed from.

2. A party, although in default, who would be adversely affected by a modification or reversal of the judgment is an adverse party who must be served with notice of appeal.

3. Where an adverse party is not served with notice of appeal upon proper motion the appeal will be dismissed.

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

Motion to dismiss appeal. Appeal dismissed.

Appeal dismissed. Costs awarded to respondent. Petition for rehearing denied.

Bothwell & Chapman, for Appellant.

The Paysee Investment Company is not an adverse party, so that it will be adversely or prejudicially affected by a reversal or modification of the judgment appealed from, since the sole issue presented to the trial court and tendered by this appeal is appellant's ownership and right to possession of the Buick automobile in question, the Paysee Investment Company having made no claim thereto, and it appearing without contradiction that it had sold the property to appellant receiving full payment therefor from him, and had delivered possession thereof to him. (Bannock National Bank v. Automobile Accessories Co., 36 Idaho 527, 212 P 864; Holt v. Empey, 32 Idaho 106, 178 P. 703; The Diamond Bank v. Van Meter, 18 Idaho 243, 21 Ann Cas. 1273, 108 P. 1042; Bergh v. Pennington, 33 Idaho 198, 191 P. 204; Aulbach v. Dahler, 4 Idaho 522, 43 P. 192.)

The Paysee Investment Co. is not an adverse party so as to be adversely or prejudicially affected by a reversal or modification of the judgment appealed from, since said judgment is not a joint judgment against the said Paysee Investment Company and appellant, and its reversal or modification cannot affect the amount of respondent's judgment against the Paysee Investment Company. (The Diamond Bank v. Van Meter, supra; Bannock National Bank v. Automobile Accessories Co., supra; Aulbach v. Dahler, supra.)

The Paysee Investment Company is not an adverse party upon whom service of notice of appeal herein is required, for the reason that at the time of the perfecting of this appeal that corporation was defunct, its charter forfeited by executive proclamation in accordance with law for its failure to pay its annual license fee to the state, and said corporation was at the time of perfecting appeal herein hopelessly insolvent and had no interest in this action and neither claim nor title to the property in controversy. (Wright v. Spencer, 38 Idaho 447, 221 P. 846; Galveston, Huston & N. R. Co. v. House, 102 F. 112, 42 C. C. A. 205; Harrigan v. Gilchrist, 121 Wis. 127, 99 N.W. 909.)

Sweeley & Sweeley, for Respondent.

Notice of appeal must be served on each party whose interest would be affected by modification or reversal of the judgment appealed from, whether such party be plaintiff, defendant or intervenor, and whether he appears or is in default. (Titiman v. Alamance Min. Co., 9 Idaho 240, 74 P. 529; Miller v. Wallace, 26 Idaho 373, 143 P. 524; Bridgham v. National Pole Co., 27 Idaho 214, 147 P. 1056; State Bank v. Watson, 27 Idaho 211, 148 P. 470.)

Service of notice of appeal must be made, being jurisdictional, whether party in default or not. (The Diamond Bank v. Van Meter, 18 Idaho 243, 21 Ann. Cas. 1273, 108 P. 1042.)

Adverse party, as used in this section (7151) means any party who would be prejudicially affected by the reversal of the judgment, a party who has an interest in conflict with a reversal of the judgment. (Nelson Bennett Co. v. Twin Falls Land & Water Co., 13 Idaho 767, 13 Ann. Cas. 172, 92 P. 980.)

OPINION

PER CURIAM.

Respondent sold two automobiles to the Paysee Investment Company. The first was paid for but the second was not. Thereafter respondent sued the Paysee Investment Company for the purchase price of the second car and levied attachment on the first. The car was later sold to satisfy the attachment.

Appellant intervened and claimed the car levied upon as his. The jury returned a verdict in favor of respondent and against appellant. The court thereupon entered judgment for respondent against the Paysee Investment Company and dismissed the complaint of intervention. Thereafter on the hearing of appellant's complaint of intervention and the answer of the Paysee Company to such complaint, the Paysee Company refused to pursue its defense, whereupon the court entered the default of the company and adjudged appellant the owner and entitled to possession of the car as to the Paysee Investment Company.

Appellant appeals from the judgment entered against him, in favor of respondent.

Respondent moves to dismiss the appeal on the ground that a notice of appeal was not directed to nor served upon the defendant, Paysee Investment Company.

C. S sec. 7153, provides in part: "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...