Nelson Bennett Co. v. Twin Falls Land & Water Co.

• Decision Date: 30 December 1907
• Parties: NELSON BENNETT CO. and ALEXANDER TOPONCE, Respondents, v. TWIN FALLS LAND & WATER CO. et al., Appellants
• Court: Idaho Supreme Court

92 P. 980

13 Idaho 767

NELSON BENNETT CO. and ALEXANDER TOPONCE, Respondents, v. TWIN FALLS LAND & WATER CO. et al., Appellants

Supreme Court of Idaho

December 30, 1907

APPEAL-ADVERSE PARTY-SERVICE OF NOTICE.

1. Revised Statutes, section 4808, requires that a notice of appeal shall be served upon the adverse party. "Adverse party," as used in this section, means any party who would be prejudicially affected by a reversal of the judgment, a party who has an interest in conflict with a reversal of the judgment.

2. Where R. and C. were made defendants in an action to recover for labor and to foreclose a lien, and facts are not alleged showing an indebtedness due said R. & C., or that they claimed or were entitled to a lien, and they filed no pleading in said cause, or set forth their lien in any manner, and the court made no finding in their favor, or against them, and the judgment in no way granted them any right or gave them anything, or denied them any claim or right, and it affirmatively appears from the record that such parties would not be prejudicially affected by a reversal of the judgment: Held, that even though they appeared by general appearance only, in said action, they were not entitled to any notice of an appeal from the judgment.

(Syllabus by the court.)

APPEAL from the District Court of Fourth Judicial District for Cassia County. Hon. Lyttleton Price, Judge.

Action to foreclose laborer's lien. Judgment for plaintiff. Defendant appealed. Motion to dismiss appeal. Motion overruled.

Motion to dismiss the appeal overruled.

Henderson Pierce, Critchlow & Barrette, and S. H. Hays, for Appellants.

It nowhere appears that Ryberg & Carleson ever filed any pleadings or took part in the case in any manner. Appellant never at any time was served with pleadings on the part of Ryberg & Carleson, nor was it required to serve any pleadings upon them. So far as it appears from this record, they were mentioned in the complaint as being parties who had some possible claim against Nelson Bennett Company, and a possible lien of some sort for work not described upon property not described, but were made parties in order that if they chose they might appear and have their rights litigated with those of Nelson Bennett Company, the original contractors. They are not adverse parties to the suit who could be in any manner affected by a modification or reversal of the decree herein. The allegations of the complaint are not sufficient to even bring them into court as parties adversary to the plaintiff Nelson Bennett Company, or to any other party in the suit.

Under the circumstances, Ryberg & Carleson were unnecessary parties, and as such, even under the rule adhered to in Idaho California, and Oregon, it was not necessary to serve them with notice of appeal, since no personal judgment was sought against them and no relief was asked or granted in respect to them. (Hand Mfg. Co. v. Marks, 36 Or. 523, 52 P 512; Cooper Mfg. Co. v. Delahunt, 36 Or. 402, 51 P. 649.)

The supreme court of California indicates in Williams v Mining Assn., 66 Cal. 195, 5 P. 85, and in Vincent v. Collins, 122 Cal. 387, 55 P. 130, that it is parties whose rights have been ascertained and fully determined by the judgment who must be served with notice of appeal, and that otherwise the appellate court would have no jurisdiction to modify or reverse the judgment. (Kenney v. Parks, 120 Cal 22, 52 P. 40.)

The supreme court of this state has fully considered the true construction to be given to section 4808. (Aulbach v. Dahler, 4 Idaho 522, 43 P. 192.)

In the case at bar, however, there was not only no judgment rendered against Ryberg & Carleson to be affected by this appeal, but there were no allegations in the complaint indicating that any judgment could be entered or could stand if rendered. The latest case in this court is Titiman v. Alamance Min. Co., 9 Idaho 240, 74 P. 529. The court restates the doctrine as to the requirements of section 4808 as to service of notice of appeal, and explains the latter portion of the opinion in Aulbach v. Dahler. It adheres to the requirement that notice of appeal must be served upon every party who would be affected by a modification or reversal of the judgment appealed from.

It cannot be claimed that the rights of Ryberg & Carleson, if they ever had any, can be prejudiced by any modification or by the reversal of the judgment and decree herein. There certainly is nothing in the suit at bar which would operate by way of estoppel against Ryberg & Carleson, either in behalf of Toponce, Twin Falls Land and Water Company or Nelson Bennett Company.

Marshall K. Snell, Bertha M. Snell, and H. H. Henderson, for Respondents.

No notice of appeal was served upon defendants Ryberg & Carleson, and the time for giving such notice having long since expired, this court has acquired no jurisdiction of this cause of appeal, for any decision it might render herein would affect such parties, and therefore, this appeal should be dismissed. (Titiman v. Alamance Min. Co., 9 Idaho 240, 74 P. 529; Baker v. Drews, 9 Idaho 276, 74 P. 1130.)

In the cases cited in which this court has made its rule, there was no appearance on the part of the particular parties referred to, but the court nevertheless held that having been shown to be adverse parties who would be affected by a reversal or modification of the decree appealed from, they should have been served with notice of appeal. In the case at bar, the defendants Ryberg & Carleson and Filer & De-Long were doubly entitled to notice of appeal, not only because they were interested or adverse parties in the contemplation of the law, but also because they had duly appeared, filed their appearance, had their attorneys of record, and were entitled to notice under section 4892, Revised Statutes of 1887.

The amended complaint (paragraphs 20, 51-53) affirmatively shows Ryberg & Carleson had a valid and existing prior lien, and appellant admits this in its answer (196, 216) and does not deny that they are necessary parties (199).

The case of Mills v. Smiley, 9 Idaho 317, 325, 76 P. 783, 325, distinguishes and clarifies the rule laid down in the Titiman-Alamance case.

Every defendant who has appeared in an action is entitled to notice of all subsequent proceedings, of which notice is required to be given. (Rev. Stats., sec. 4892; Cummings v. Steele, 6 Idaho 666, 59 P. 15.)

The term "adverse party" is further defined in Kerns v. Morgan, 11 Idaho 580, 83 P. 954, as "a party to the original action."

"In the matter (appeal) the appellant cannot choose for himself against whom he will proceed for a review on appeal; he must conform to the requirements of the statute." (Spelling on New Trial and Appellate Practice, sec. 536.)

"When a defendant has appeared in an action he is entitled to notice of all subsequent proceedings had therein which in any respect affect his rights and interests." (2 Ency. of Pl. & Pr. 604.)

"The record must affirmatively show the service of the notice of appeal on the adverse party or his attorneys." This provision is mandatory, and the record must affirmatively show that it has been complied with to give this court jurisdiction. (Adams v. McPherson, 2 Idaho 855, 27 P. 577.)

In California, Oregon, Utah and Montana, a similar, and in some cases an identical, statute as to service of notice of appeal exists, and we cite the following leading cases: Bank of Ogden v. U.S. Sav. & Loan Co., 13 Utah 189, 44 P. 1043; Stephens v. Stevens, 27 Utah 261, 75 P. 619; Senter v. De Bernal, 38 Cal. 637; O'Kane v. Daly, 63 Cal. 317; Millikin v. Houghton, 75 Cal. 539, 17 P. 641; Reed v. Allison, 61 Cal. 461; Toy v. Railway Co., 75 Cal. 542, 17 P. 700; Hibernia Sav. Soc. v. Lewis, 111 Cal. 519, 44 P. 175; Bullock v. Tayler, 112 Cal. 147, 44 P. 457; Bowering v. Adams, 126 Cal. 653, 59 P. 134; McDonald v. Backus, 45 Cal. 262; Moody v. Miller, 24 Or. 179, 33 P. 402; The Victorian, 24 Or. 121, 41 Am. St. Rep. 838, 32 P. 1040; Osborn v. Logus, 28 Or. 302, 37 P. 456; Jackson Co. v. Bloomer, 28 Or. 110, 41 P. 930; Power & Bro. v. Murphy, 26 Mont. 387, 68 P. 411; Lancaster v. Maxwell, 103 Cal. 67, 36 P. 951; Pacific Mutual Life Ins. Co. v. Fisher, 106 Cal. 224, 39 P. 758.

STEWART, J. Ailshie, C. J., concurs. Sullivan, J., dissents.

OPINION

STEWART, J.

The respondent moves to dismiss the appeal herein upon the ground that notice of appeal was not served upon Ryberg & Carleson, defendants named in the complaint. Revised Statutes, section 4808, requires that a notice of appeal shall be served upon the "adverse party" or his attorney. If Ryberg & Carleson were adverse parties within the meaning of this statute, then the appeal should be dismissed, as it is admitted a notice of appeal was not served upon them.

"Adverse parties upon whom notice of appeal must be served are such parties as a reversal of judgment would affect." (Aulbach v. Dahler, 4 Idaho 522, 43 P. 192; Titiman v. Alamance Min. Co., 9 Idaho 240, 74 P 529.) The words "would affect." as used in these two decisions, mean "adversely affect." The statute intends that a notice of appeal should be served upon all parties who have an interest in conflict with a reversal of the judgment, or whose rights would be adversely affected by a reversal of such judgment. (Hayne on New Trial and Appeal, sec. 210; Foley v. Bullard, 97 Cal. 516, 32 P. 574; United States v. Crooks, 116 Cal. 43, 47 P. 870; Elliott v. Superior Court, 144 Cal. 501, 103 Am. St. Rep. 102, 77 P. 1109; 2 Spelling on New Trial and Appellate Practice, pp. 1143-1146; 1 Words and Phrases, p. 224; The Victorian, 24 Ore. 121, 41 Am. St. Rep. 838, 32 P. 1040.) Where default is entered and the rights of the defendant cannot be prejudicially affected by further proceedings in ...