Sonleitner v. McLaren

• Decision Date: 27 March 1933
• Docket Number: 5899
• Citation: 52 Idaho 791,20 P.2d 1014
• Parties: CARL SONLEITNER, CHARLES A. WEBB, ELMER WILLIAMS, MARDELL SONLEITNER, C. E. MILL, CLAUD W. HACKNEY, Respondents, v. WALTER MCLAREN, Appellant
• Court: Idaho Supreme Court

20 P.2d 1014

52 Idaho 791

CARL SONLEITNER, CHARLES A. WEBB, ELMER WILLIAMS, MARDELL SONLEITNER, C. E. MILL, CLAUD W. HACKNEY, Respondents, v. WALTER MCLAREN, Appellant

No. 5899

Supreme Court of Idaho

March 27, 1933

APPEAL AND ERROR-NOTICE OF APPEAL-ADVERSE PARTY-MECHANICS' LIENS-DEFAULT JUDGMENT-LIMITATION TO RELIEF SOUGHT BY PLEADING.

1. "Adverse party" within statute requiring notice of appeal to adverse party is any party to action whose interests might be prejudicially affected by reversal or modification of judgment appealed from (I. C. A., sec 11-202).

2. Service of notice of appeal on all adverse parties, or their attorneys, is necessary to give supreme court jurisdiction (I. C. A., sec. 11-202).

3. Where complaint merely sought to establish existence and rank of labor liens, sale made pursuant to attempt to foreclose liens would be void (I. C. A., sec. 7-704).

4. Where default judgment declared complainants' liens to be superior to lien of judgment creditor who had caused debtor's property to be sold at execution sale and had purchased it at such sale, debtor held "adverse party" on whom failure to serve notice of appeal from order refusing to vacate default was fatal (I. C. A., sec 11-202).

APPEAL from the District Court of the Third Judicial District, for Boise County. Hon. Charles E. Winstead, Judge.

An appeal from a judgment, and an appeal from an order overruling a motion to vacate a default. Dismissed.

Appeals dismissed. Costs awarded to respondents.

Fisher & Coffin, for Appellant.

Since this decree was entered by default, it cannot lawfully award relief not prayed for by plaintiff's nor declare a lien upon property not alleged by the plaintiffs to be subject to lien., (Sec. 6829, I. C. S. (4353), Rev. Codes; Lowe v Turner, 1 Idaho 107; Wilson v. Boise City, 7 Idaho 69, 60 P. 84; Washington County etc. Co. v. Weiser Nat. Bank, 26 Idaho 717, 146 P. 116, 11 Ann. Cas. 353, note.)

James H. Hawley, Jr., for Respondents.

The default decree does not award relief beyond the prayer of the complaint. (2 Delvin on Real Estate, p. 1619; Isham v. Morgan, 9 Conn. 374, 23 Am. Dec. 361; 18 Corpus Juris, 294.)

Appellant's motion to vacate was not accompanied by any showing of facts constituting a defense, nor a proposed answer. (Miller v. Brinkman, 48 Idaho 232, 281 P. 372.)

MORGAN, J. Givens, Holden, Wernette, JJ., and Sutphen, D. J., concur.

OPINION

MORGAN, J.

This is a suit to foreclose labor liens filed by respondents upon property of Crooked River Mining Company, hereinafter called the company. Appellant, McLaren, was made a defendant because he had recovered two judgments against the company, caused the property upon which the liens were claimed, or parts of it, to be sold at execution sale and purchased it. Each respondent prayed for judgment against the company for the money he claimed to be due him from it; that he be adjudged and decreed to have a lien upon the property for that amount, and that it be decreed to be of equal rank and standing with the liens of the other respondents and preferred and superior to the liens of judgments and claims of title of McLaren. The complaint does not contain prayers for the foreclosure of the liens, for the sale of the property, nor for deficiency judgments. Summons was served upon the company in Idaho and upon McLaren in Ohio. Neither appeared and their defaults were entered. Judgment was awarded as prayed for and, in addition to that relief, it was attempted to decree the foreclosure of the liens and to order sale of the property therein described to satisfy respondents' claims. McLaren moved that the default taken against him be vacated on the ground that his attorneys had failed and neglected to appear for him, and asserting he was without fault in the matter. The motion was overruled. He has appealed from the judgment and from the order overruling his motion to vacate the default. The company was not named a party to, nor was it served with, notice of the appeals.

"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 specific part thereof, and serving a similar notice on the adverse party, or his attorney. . . ." (I. C. A., sec. 11-202.)

An adverse party, within the meaning of this section, is any party to the action or proceeding whose interests might be prejudicially affected by reversal or modification of the judgment or order appealed from. Service of the notice of appeal on all such adverse parties, or their attorneys, is necessary to give this court jurisdiction of the case. (Jones v. Quantrell, 2 Idaho 153, 9 P. 418; Coffin v. Edgington, 2 Idaho 627, 23 P. 80; Aulbach v. Dahler, 4 Idaho 522, 43 P. 192; Lydon v. Godard, 5 Idaho 607, 51 P. 459; Lewiston National Bank v. Tefft, 6 Idaho 104, 53 P. 271; Titiman v. Alamance Mining Co., 9 Idaho 240, 74 P. 529; Baker v. Drews, 9 Idaho 276, 74 P. 1130; Reed v. Stewart, 12 Idaho 699, 87 P. 1002, 1152; Doust v. Rocky Mountain Bell Tel. Co., 14 Idaho 677, 95 P. 209; Diamond Bank v. Van Meter, 18 Idaho 243, 108 P. 1042, 21 Ann. Cas. 1273; Berlin Machine Works v. Bradford Kennedy Co., 21 Idaho 669, 123 P. 637; Miller v. Wallace, 26 Idaho 373, 143 P. 524; State Bank v. Watson, 27 Idaho 211, 148 P. 470; Bridgham v. National Pole Co., 27 Idaho 214, 147 P. 1056; Glenn v. Aultman & Taylor M. Co., 30 Idaho 727, 167 P. 1163; Williams v. Sherman, 34 Idaho 63, 199 P. 646; Kline v. Shoup, 35 Idaho 527, 207 P. 584; Bannock National Bank v. Automobile A. Co., 36 Idaho 527, 212 P. 864; Lind v. Lambert, 40 Idaho 569, 236 P. 121; Abel v. Robert Noble Estate, 43 Idaho 391, 252 P. 493; Mahaffey v. Pattee, 46 Idaho 16, 266 P. 430; Gibson v. Boone, 47 Idaho 735, 279 P. 409.)

Counsel for appellant insist the rule above stated does not apply to the appeal from the order overruling the motion to vacate the default, and that this court has jurisdiction to review that ruling.

The purpose of the law requiring that notice of appeal be given to all parties to the action or proceeding whose interests may be prejudicially affected by a reversal or modification of the judgment or order...