Walker v. Shell

• Decision Date: 07 December 1929
• Docket Number: 5443
• Citation: 48 Idaho 481,282 P. 947
• Parties: JOSIE WALKER, Respondent, v. CARL SHELL, W. T. CLINKENBEARD, Appellants, and LUKE CLINKENBEARD, MORRIS COOK, A. BLOMBERG, and the Unknown Owners of the Jgafle, the Grangeville, and the Columbus Placer Mining Claims, So Called, in the Elk Mining District, Idaho County, Idaho, Defendants
• Court: Idaho Supreme Court

282 P. 947

48 Idaho 481

JOSIE WALKER, Respondent, v. CARL SHELL, W. T. CLINKENBEARD, Appellants, and LUKE CLINKENBEARD, MORRIS COOK, A. BLOMBERG, and the Unknown Owners of the Jgafle, the Grangeville, and the Columbus Placer Mining Claims, So Called, in the Elk Mining District, Idaho County, Idaho, Defendants

No. 5443

Supreme Court of Idaho

December 7, 1929

APPEAL AND ERROR-NOTICE OF APPEAL - DIRECTION AND SERVICE-ADVERSE PARTY.

1. Where attorney for appealing defendants was also attorney for defendant who did not appeal, it was unnecessary to make separate service of notice of appeal on defendant not appealing.

2. Where decree quieted title in plaintiff to certain mining claims, and also gave damages and costs against all three defendants, jointly and severally, a defendant not appealing was an "adverse party," who might be prejudicially affected by reversal or modification of decree, so that it was necessary to direct notice of appeal to him.

3. Failure to direct notice of appeal to an adverse party was fatal defect, though such notice was served on such party by virtue of fact that attorney of such defendant was also attorney for appealing defendants, so that it was unnecessary to make separate service.

APPEAL from the District Court of the Tenth Judicial District, for Idaho County. Hon. W. F. McNaughton, Judge.

Motion to dismiss appeal. Appeal dismissed.

Appeal dismissed. Costs to respondent.

A. S Hardy, for Respondent.

Our court has frequently defined the meaning of adverse party. For instance in Diamond Bank v. Van Meter, 18 Idaho 243, Ann. Cas. 1912A, 1, 108 P. 1042, L. R. A. 1915B, 1016 the court laid down the rule for determining adverse parties as follows:

"A safe rule to apply in determining whether a party to a judgment is adverse is, if the judgment be reversed and the cause again tried, could a judgment be entered which would injuriously affect the liability of such person by changing or increasing his liability or rights as fixed by the former judgment? If so, then such person is an adverse party within the meaning of the statute. . . . If a judgment is joint and is reversed, then the cause stands for retrial, and is in the same position as though never tried; and leaves all the parties to the suit in such position that they may urge as defenses any defense they may have. If, however, a judgment is several and grants relief against each defendant separately, then a reversal as to one defendant could not affect the judgment rendered against the other defendant."

It is also well established by the decisions of our court that where a judgment is joint against several defendants, each of the co-defendants is an adverse party upon an appeal by one of the defendants. (Doust v. Rocky Mountain Bell etc Co., 14 Idaho 677, 95 P. 209; Lydon v. Godard, 5 Idaho 607, 51 P. 459; Titiman v. Alamance Mining Co., 9 Idaho 240, 74 P. 529.)

The same rule has been discussed in other states and we call special attention to the following case: Griffin v. Southern P. Co., 31 Utah 296, 87 P. 1091.

It has been fully established by the decisions in Idaho that where a notice of appeal purports to be directed to certain parties to the action and not to other parties, its effect is limited to the parties to whom it is directed, and no one else is a party to the appeal or before this court. (Glenn v. Aultman & Taylor Machinery Co., 30 Idaho 727; Williams v. Sherman, 34 Idaho 63, 199 P. 646; Hibernia Savings & L. Soc. v. Lewis, 111 Cal. 522, 44 P. 175; Williams v. Bergin, 108 Cal. 166, 41 P. 287; In re Pendergast's Estate, 143 Cal. 135, 76 P. 962; In re Anderson's Estate, 125 Iowa 670, 101 N.W. 510.)

Wilbur L. Campbell, for Appellants.

In answer to the point of attorney for respondent in his motion to dismiss the appeal, on the ground that the notice of appeal is not directed to the defendant, Luke Clinkenbeard, who has not appealed, and not served upon him, an affidavit is presented herewith to show the fact that the attorney representing appellants, was and is the attorney for said nonappealing defendant Luke Clinkenbeard. This affidavit would hardly be necessary. It has been held in Weeter Lumber Co. v. Fales, 20 Idaho 255, Ann. Cas. 1913A, 403, 118 P. 289, that where the same counsel is attorney for three defendants, and only one of them appeals, notice of appeal need not be served upon the nonappealing defendants, or their counsel. This authority is cited and followed in Bogue Supply Co. v. Davis, 36 Idaho 249, 210 P. 577. Nothing more need be said.

GIVENS, J. Budge, C. J., and T. Bailey Lee and Varian, JJ., concur. WM. E. LEE, J., Concurring Specially.

OPINION

GIVENS, J.

This action was prosecuted in the lower court by Josie Walker, plaintiff and respondent, against Carl Shell, W. T. Clinkenbeard, Luke Clinkenbeard, Morris Cook, A. Blomberg, and the unknown owners of the Jgafle, the Grangeville and the Columbus Placer Mining claims, so called, in the Elk City Mining District, Idaho county. A decree in favor of plaintiff and respondent was entered against Carl Shell, W. T. Clinkenbeard and Luke Clinkenbeard.

An appeal was taken from this decree by Carl Shell and W. T. Clinkenbeard only.

Respondent moves to dismiss this appeal because Luke Clinkenbeard was an adverse party and...