People's Savings & Trust Co. of Pittsburgh v. Rayl

• Citation: 265 P. 703,45 Idaho 776
• Decision Date: 23 March 1928
• Docket Number: 5003
• Court: Idaho Supreme Court
• Parties: PEOPLE'S SAVINGS & TRUST COMPANY OF PITTSBURGH, a Corporation, Trustee, Respondent, v. ROBERT RAYL, NORA RAYL and W. R. BROOKS, Appellants

265 P. 703

45 Idaho 776

PEOPLE'S SAVINGS & TRUST COMPANY OF PITTSBURGH, a Corporation, Trustee, Respondent, v. ROBERT RAYL, NORA RAYL and W. R. BROOKS, Appellants

No. 5003

Supreme Court of Idaho

March 23, 1928

APPEAL AND ERROR - FILING OF APPEAL BOND - TIME - SERVICE OF NOTICE OF APPEAL-ADVERSE PARTIES.

1. Filing appeal bond on date of service of notice of appeal by mail, which was two days before acceptance of service was indorsed thereon, held not premature in proper case for service by mail, since, under C. S., sec. 7199, service of notice was complete when notice with copy thereof was deposited in mail.

2. On motion to dismiss appeal on ground that appeal bond was prematurely filed, court may consider affidavit showing service of notice of appeal by mail on date of filing appeal bond.

3. Filing of appeal bond required by C. S., sec. 7153, within five days after notice of appeal, prior to service of notice of appeal, vitiates appeal, though bond remains on file at all times thereafter, in view of sec. 7154, authorizing exception within twenty days after filing of undertaking in case it is insufficient.

4. Service of notice of appeal need only be made on "adverse parties," and an adverse party is one who would be prejudicially affected by a modification or reversal of judgment appealed from.

5. Where defendants filed appeal bond on date of proper service of notice of appeal on plaintiffs by mail, subsequent service of notice of appeal on defendant who was not an adverse party held not to vitiate filing of the bond, since appeal was perfected in so far as service of notice was concerned when service was had on plaintiff who was only adverse party thereto.

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

Action to foreclose mortgage. Judgment for plaintiff. Motion to dismiss defendants' appeal. Denied.

Motion to dismiss the appeal denied.

Richards & Haga, for Respondent.

C. S sec. 7153, provides that an appeal is taken by filing notice of appeal with the clerk and serving a similar notice on the adverse party or his attorney. The section continues "The order of service is immaterial, but the appeal is ineffectual for any purpose unless within five days after service of the notice of appeal, an undertaking be filed, or a deposit of money be made with the clerk, as hereafter provided, or the undertaking be waived by the adverse party in writing." The first case construing the section is Clark v. Lowenberg, 1 Idaho 654:

"The undertaking in this appeal was filed too soon. The statute does not permit the undertaking to be filed until after the service of the notice; and therefore until such service, there is nothing for the undertaking to operate on. It has no office or function to perform. The case stands therefore as if no undertaking had been given, and there was no appeal perfected." (Shissler v. Crooks, 1 Idaho 369; People v. Hunt, 1 Idaho 371; Wilson v. Bartlett, 7 Idaho 269, 62 P. 415; Healy v. Taylor, 37 Idaho 749, 218 P. 190; Brown v. Green, 65 Cal. 221, 3 P. 811.)

Turner K. Hackman, for Appellants.

"In Zienke v. Northern Pacific Ry. Co., 7 Idaho 746, 65 P. 431, it was held that an undertaking on appeal is not executed until filed with the clerk, and is sufficient where it is shown that the undertaking was filed simultaneously with the notice of appeal, although it appears to have been signed upon a date previous thereto, but after the order appealed from had been made and entered. This ground of motion to dismiss the appeal is without merit." (Robinson v. St. Maries Lumber Co., 32 Idaho 651, 186 P. 923.)

This court has also held that where the undertaking on appeal was filed five minutes before the notice of appeal, according to the filing marks of the instruments, and where the clerk certified that the undertaking "did in fact follow the notice of appeal," that the appeal should not be dismissed. (Mathers v. Mathers, 42 Idaho 821, 248 P. 468.)

This court has also held that where the certificate of the clerk showed that a deposit was made with him on the same day upon which notice of appeal was filed such deposit being in lieu of an undertaking on appeal, the case was not subject to dismissal. (Bohannen Dredging Co. v. England, 30 Idaho 721, 168 P. 12.)

BRINCK, Commissioner. Wm. E. Lee, C. J., and Givens, Taylor and T. Bailey Lee, JJ., concur.

OPINION

BRINCK, Commissioner.--

In an action to foreclose a mortgage upon real estate, the mortgagors, Robert Rayl and Nora Rayl, were made parties defendant; and under an allegation that one W. R. Brooks claimed an interest in the mortgaged premises, which interest was alleged to be subject and subsequent to plaintiff's lien, said Brooks was also made a party defendant. Defendant Brooks was served with summons but did not appear and suffered default. The defendants Rayl answered the complaint, and filed a cross-complaint against plaintiff to which Brooks was not made a party, and which was answered by plaintiff; and upon issues so made trial was had, resulting in a judgment foreclosing the mortgage for the full amount claimed by plaintiff. The defendants Rayl appeal from the judgment.

Motion is made to dismiss the appeal upon the ground that the undertaking on appeal was prematurely filed. The undertaking was filed on February 7, 1927, on which day notice of appeal and copy thereof were mailed by counsel for appellants to counsel for plaintiff, who on February 9th indorsed their written acceptance of service on the notice and returned it to counsel for appellants. Thereafter, on February 12th, the notice of appeal was served upon the personal representative of defendant Brooks, and upon February 15th was filed with the clerk.

Regardless of the acceptance of service of the notice of appeal by plaintiff on February 9th, it was a proper case for service by mail, and such service being properly made, the service of the notice on plaintiff was complete on February 7th, when the notice, with copy thereof, was deposited in the mail. (C S., sec. 7199.) The transcript shows only the acceptance of the service on February 9th. The service by mail upon February 7th is shown by affidavit upon this hearing; and such showing in this court may properly be considered upon ...