Mendini v. Milner

• Decision Date: 21 February 1929
• Docket Number: 5091
• Citation: 276 P. 35,47 Idaho 322
• Court: Idaho Supreme Court
• Parties: LUIGI MENDINI and ROSA MENDINI, Husband and Wife, Respondents, v. SALINA S. MILNER, TWIN FALLS LAND & WATER COMPANY, a Corporation, TWIN FALLS CANAL COMPANY, a Corporation; J. J. RUGG, and THE UNKNOWN OWNERS OF THE N.E. 1/4 N.E. 1/4, Sec. 26, Twp. 9 S., R. 14 E, B. M., TWIN FALLS COUNTY, Respondents, and MARY S. RUTT, Intervenor and Appellant

276 P. 35

47 Idaho 322

LUIGI MENDINI and ROSA MENDINI, Husband and Wife, Respondents, v. SALINA S. MILNER, TWIN FALLS LAND & WATER COMPANY, a Corporation, TWIN FALLS CANAL COMPANY, a Corporation; J. J. RUGG, and THE UNKNOWN OWNERS OF THE N.E. 1/4 N.E. 1/4, Sec. 26, Twp. 9 S., R. 14 E, B. M., TWIN FALLS COUNTY, Respondents, and MARY S. RUTT, Intervenor and Appellant

No. 5091

Supreme Court of Idaho

February 21, 1929

APPEAL AND ERROR - SERVICE OF NOTICE OF APPEAL - MOTION TO DISMISS-DIMINUTION OF RECORD.

1. On motion to dismiss appeal for lack of service of notice of appeal on adverse parties, it is proper to entertain suggestion for diminution of record, accompanied by affidavits showing service on such parties, since it is fact of service, rather than proof of service, on which jurisdiction of court rests, under C. S., sec. 7153.

2. Where parties served with notice of appeal resided at different place from party making service, it was proper to serve such notice of appeal by mailing, under C. S., sec 7200.

3. Separate notices of appeal, addressed to different parties held substantial compliance with statutory requirements under C. S., sec. 7153, since intent of statute is to provide proper notice to all parties, and if notice clearly indicates judgment from which appeal is taken, and service of notice is made on all adverse parties, statutory requirements are fully met.

4. Respondent, by admitting service of notice of appeal, held to have waived any irregularity in notices of appeal.

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

Motion to dismiss on ground that notice of appeal was not served on all adverse parties. Denied.

Motion to dismiss denied. No costs allowed.

Bissell & Bird, for Respondents.

This court has several times decided that where a notice of appeal is addressed to certain specific parties, naming them, its legal effect is limited to such named parties only. (Glenn v. Aultman etc. Co., 30 Idaho 727, 167 P. 1163.) This holding was affirmed in the more recent case of Williams v. Sherman, 34 Idaho 63, 199 P. 646. This holding was approved by the supreme court of Montana a very short time ago in the case of Mitchell v. Banking Corporation, 81 Mont. 459, 264 P. 127.

C. S., sec. 7153 requires a notice of appeal to be served "on the adverse party, or his attorney." This court has oftentimes decided that under this statute the notice of appeal must be served on each party whose interest would be affected by modification or reversal of the judgment or decree appealed from, regardless of whether such party appears to be a plaintiff, defendant or intervenor, and regardless of whether he appears or is in default. To support this rule many cases are cited in the annotations following said sec. 7153 in the code.

Sweeley & Sweeley, for Appellant, cite no authorities on points decided.

GIVENS, J. Budge, C. J., Taylor and Wm. E. Lee, JJ., and Hartson, D. J., concur.

OPINION

GIVENS, J.

Respondents have moved to dismiss this appeal on the ground that notice of appeal was not served on all adverse parties.

Within the statutory time a notice of appeal addressed to "the plaintiffs in the above-entitled action and to Robert C. Brown, defendant, and to Bissell & Bird, attorneys for said plaintiffs and defendant" was filed and service accepted by Bissell & Bird. This notice and proof of service thereof appear in the record.

On the same day a notice addressed to "Twin Falls Land & Water Company, Twin Falls Canal Company, J. J. Rugg, William A. Winters, Jess O. Eastman and Ralph B. Smith, as Trustee for Idaho Butchering and Packing Company," all defendants below, was filed. The body of this notice is identical with that of the notice referred to above. It appears in the record that service of this notice was accepted by James R. Bothwell, attorney for the Twin Falls Canal Company.

In connection with a suggestion relating to the diminution of the record, appellant has filed affidavits showing personal service on Ralph B. Smith and the Twin Falls Land and Water Company, and service by mailing on J. J. Rugg, Jess O. Eastman and William A. Winters.

It is urged by respondent that proof of service of notice of appeal on adverse parties filed in the court below after the certification of the transcript and therefore not appearing in the transcript, cannot be made by subsequent affidavits filed in this court accompanied by a suggestion for a diminution of the record. We believe this contention is unsound.

Our statute relating to the perfection of an appeal (C. S., sec. 7153) requires that a notice of appeal be filed with the clerk of the court in which the judgment appealed from is entered and that a similar notice be served on the adverse party or his attorney. It does not require, as do the statutes of some states, that proof of service of this notice be indorsed on the original notice filed with the clerk. The statute is entirely silent as to the method by which this court is to be advised that service of notice of appeal has been made on the adverse party, although this does not alter the fact that such service is necessary to give this court jurisdiction. But it is the fact of service rather than proof of service on which the jurisdiction of the court rests. (Farmers' & Miners' State Bank v. Probst, 76 Mont. 284, 246 P. 249; Warren v. Hopkins, 110 Cal. 506, 42 P. 986; Mendioca v. Orr, 16 Cal. 368; 2 Cal. Jur. 355, 356, sec. 135.)

The conclusion reached herein is not out of harmony with Bain v. Tolley, 39 Idaho 174, 226 P. 1069, since herein the notice of appeal was in the transcript as therein required, and appellant seeks, in diminution of the record, to supply the proof of service which was filed in the lower court but does not appear in the transcript. This complies with the requirement in the case referred to that proof of service must be furnished this court.

Upon motion to dismiss for lack of service on an adverse party, it is proper to entertain a suggestion for the diminution of the record, accompanied by affidavits showing service on such parties. It was so held by this court in the recently decided case of People's Savings & Trust Co. v. Rayl, 45 Idaho 776, 265 P. 703. (See, also, Weiser River Fruit Assn. v. Feltham, 31 Idaho 633, 639, 175 P. 583; Garrett v. Garrett, 31 Cal.App. 173, 159 P. 1050; Martin v. De Ornelas, 139 Cal. 41, 72 P. 440; Sutter County v. Tisdale, 128 Cal. 180, 60 P. 757; Knowlton v. Mackenzie, 110 Cal. 183, 42 P. 580; Heinlen v. Heilbron, 94 Cal. 636, 30 P. 8; Dalzell v. Superior Court, 67 Cal. 453, 7 P. 910; Elder v. Frevert, 18 Nev. 278, 3 P. 237; Tucker v. Thraves, 45 Okla. 209, 145 P. 784; 2 Cal. Jur. 355, 356, sec. 135.)

In Sweaney & Smith Co. v. St. Paul etc. Co., 35 Idaho 303, 206 P. 178, and Douglas v. Kenney et al., 40 Idaho 412, 233 P. 874, where the court refused to entertain a suggestion for the diminution of the record, no question of proof of service of notice of appeal was involved.

The affidavits filed by respondent in proof of service disclose that three of the adverse parties, J. J. Rugg, Jess O. Eastman and W. A. Winters, were served with notice of appeal by mailing. The affidavits show that the parties so served resided at a different place from the party making the service and therefore this method was proper. (C. S., sec. 7200; Garrettt v. Garrett, supra; Heinlen v. Heilbron, supra.)

Respondent also contends that two separate notices of appeal having been filed with the clerk, each addressed to different parties, there are therefore two appeals before the court, and that one of these must be abandoned in which event the court would have no jurisdiction over the parties in the abandoned appeal. Inasmuch as this court has held that an appeal is not perfected until all adverse parties have been served, it would follow, if this contention be sustained, that the appeal would have to be dismissed. (Cook et al. v. Miller, 30 Idaho 749, 168 P. 911.)

Such contention mistakes the form for the substance. (See Stephens v. Conley, 48 Mont. 352 Ann. Cas. 1915D, 958, 138 P. 189.) We cannot say that filing two notices of the kind herein was not a substantial compliance with the statutory requirements. (C. S., sec. 7153.) The plain...