Wyoming Hereford Ranch v. Hammond Packing Company

• Decision Date: 05 February 1924
• Docket Number: 1205
• Citation: 31 Wyo. 31,222 P. 1027
• Parties: WYOMING HEREFORD RANCH v. HAMMOND PACKING COMPANY
• Court: Wyoming Supreme Court

222 P. 1027

31 Wyo. 31

WYOMING HEREFORD RANCH v. HAMMOND PACKING COMPANY

No. 1205

Supreme Court of Wyoming

February 5, 1924

APPEAL from District Court, Laramie County; WILLIAM A. RINER, Judge.

Action by Wyoming Hereford Ranch, a corporation, against Hammond Packing Company and others. Heard on motion to dismiss appeal.

Kinkead Ellery and Henderson for the Motion.

The City of Cheyenne one of the defendants below and a party to the decree, whose rights will be affected by a reversal thereof, did not appeal and is not before this Court; this Court cannot review said cause without the City of Cheyenne being made a party, In re Big Laramie River, 192 P 680, 3 C. J. 1003; Johnson v. Irri. Co., 4 Wyo. 164 Barkley v. Schaff, 193 N.W. 267. Unless all necessary parties are before the Court on appeal it will be dismissed, Hurst v. Lakin, 114 P. 950; Security Co. v. Myhan, 114 N.E. 410; Mann v. Mann, 172 P. 777; City of Lawton v. Burnett, 179 P. 753; Tupelo Co. v. Cook, 153 P. 164; Edwards v Wall, 113 S.E. 190; Chickasha Co. v. Bezdicheck, 126 P. 821 and cases cited. Appellants' claim to a prior water right is predicated upon alleged adjudications in 1888; the contract with the City for sewage water and a claim to title were acquired under territorial laws; these questions were disposed of by the decree below, in which the City was vitally interested, and the appeal cannot be prosecuted unless it be made a party.

W. C. Mentzer and A. R. Honnold, contra.

The City of Cheyenne is not a necessary party to the appeal; the validity of the contract between the City and Packing Company was not put in issue by the pleadings; plaintiff merely contends that the Packing Company acquired no rights under the contract; the City's appropriation of water is not questioned; the decree below merely shows that the Packing Company abandoned certain water rights by non-user; the city did not participate in the trial below, and it was unnecessary for it to appeal, Egan v. Estrada, 56 P. 721; the facts differ from the Laramie River case, and from the case of Johnson v. Irri. Company, cited; the city has no interest in this controversy, Eccles v. Co., 100 N.W. 242; Basket v. Hassell, 107 U.S. 602; Anthony Co. v. Arnett, 64 P. 1024; Tull v. Nash, 141 F. 557; Postal Co. v. Vane, 80 F. 961; Beck v. Bono, 110 P. 13; Love v. Cavett, 109 P. 554; North Boulder Co. v. Leggett, 168 P. 742; What Cheer v. Hines, 53 N.W. 126; U. S. v. Expl. Co., 203 F. 387. Respondent is the only party seeking to avoid the contract and rights of the Packing Co., thereof. The appropriations of the City are not assailed; having no legal interest the City is not a necessary party, Basket v. Hassell, supra; Hanibal Co. v. Nortoni cited by respondent is not in point on the facts; the petition does not state a cause of action against the City nor entitle respondent to any relief as against the City; the City has a storage right; its storage waters may be acquired by others by agreement, 870 Comp. Stats, 2 Kinney 1023, and cases cited; plaintiff does not claim a prescriptive right against the City, Holt v. City, 22 Wyo. 232.

Kinkead, Ellery and Henderson in reply.

The action was to cancel the contract with the City and enjoin use of water thereunder, the city is therefore a necessary party, all contracting parties are necessary to an action for its cancellation, Trust Co. v. Smith, 273 F. 1-6; Priddy v. Co., 241 S.W. 770; Dunklin Co. v. Clarke, 51 Mo. 60; Brown v. Wilcox, 94 So. 993; Biggs v. Silvey, 79 S.E. 857; Ry. Co. v. Nortoni, 55 S.W. 220; Black on Cancellation p. 1500; the subject-matter of the contract was City Sewage, one who by contract grants to another the use of real and personal property necessarily asserts ownership thereof.

POTTER, Chief Justice. BLUME AND KIMBALL, JJ., concur.

OPINION

POTTER, Chief Justice.

This cause is here under the statute providing for a so-called direct appeal as a separate and independent method of reviewing causes in this court in addition to the provisions for reviewing such causes on proceedings in error. C. S. 1920, Ch. 392. And it has been heard upon a motion filed by the plaintiff and respondent to dismiss the appeal on the ground, as alleged in the motion, that the City of Cheyenne, a party defendant in the court below and a party to the judgment appealed from, and whose rights will be "affected by the reversal of said judgment" has not been made a party to the appeal, either as an appellant or respondent.

The title of the cause in the court below and here is: "Wyoming Hereford Ranch, a corporation, Plaintiff, vs. Hammond Packing Company, a corporation, City of Cheyenne, a Municipal corporation, Carleton Clinton and Oscar Turk, Defendants." The statute aforesaid provides that the title of the action shall not be changed in consequence of the appeal, but that the party taking it shall be known as the appellant and the "adverse" party as the respondent. C. S. 1920, Sec. 6403. It provides also that the appeal shall be taken by serving a notice in writing to that effect upon the "opposing" party, or his attorney, within a stated time, and that said notice shall be filed with the clerk of the district court within the same period. Sec. 6402. This appeal is taken by the defendants Hammond Packing Company, Clinton and Turk, and their notice of appeal is directed to the plaintiff and its attorneys. No appeal appears to have been taken by the City of Cheyenne, nor does it appear that the city was served with the notice of appeal. Said statute contains no other provision defining parties to an appeal or prescribing who shall be made parties. It provides further, however, as to the service of notice of appeal and specifications of error (Id. §§ 6408, 6409) that the said specifications, within a stated time, shall be filed with the clerk of the district court and served upon "the adverse party" or his attorney, and that the said specifications and notice of appeal may be served by delivering copies thereof to the "opposing party" or his counsel within the county, etc. And it provides that the condition of a stay bond shall be, among other things, that the appellant shall pay to the "opposite party" the amount of the judgment appealed from with interest and all costs in the event he is unsuccessful. Sec. 6412.

It is apparent from the above that the question presented by the motion to dismiss is whether or not the City of Cheyenne is an "opposing" or "adverse" party within the meaning of the statute; the words "opposing" and "adverse" seeming to have been used in the same sense. It seems to be conceded that a party to the cause and judgment below whose rights may be injuriously affected by a modification or reversal of the judgment is to be considered a party adverse to the appealing party. And that is said to be the general rule. We quote from 3 C. J. 1216, Sec. 1319:

"The general rule is that all parties to the cause below whose interests may be adversely affected by the judgment on appeal are entitled to notice of the appeal, except in those jurisdictions where the appeal is taken and perfected in open court, and the appellee is bound to take notice thereof to the same extent as to the rendition of the judgment or other proceedings in the cause. * * * On the other hand, as a rule, persons not parties, or parties whose interests cannot be affected by the judgment on appeal, need not be served with notice. Notice need not be given to a mere unnecessary or formal party, * * *."

An adverse party entitled to notice of appeal is further defined as follows:

"Every party whose interest in relation to the judgment * * * is in conflict with the modification or reversal sought by the appeal; every party interested in sustaining the judgment or decree (citing cases). Every party whose interest in the subject matter of the appeal is adverse to and will be affected by the reversal or modification, * * * irrespective of the question whether such party appears on the face of the record in the attitude of plaintiff, defendant or intervener. (citing cases). * * * The 'adverse party' is the party who appears by the record to be adverse." (italics ours). 1 Words & Phrases p. 224. And see Sherman v. Nixon, 36 Idaho 195, 209 P. 886.

An appealing party "is required to notify all other parties who are interested in opposing the relief which he seeks by his appeal, if they have formally appeared in the action in the court below." Senter v. De Bernal, 38 Cal. 637.

"It is likewise axiomatic that the term "adverse party" is not necessarily confined to plaintiffs as against defendants, or vice versa, but that defendants may be adverse to each other and that the same may be said of plaintiffs. * * * he is an adverse party whose interest would be affected unfavorably to him by a reversal of the judgment appealed from." (italics ours). Lidfors v. Pflaum, (Or.) 115 Ore. 142, 205 P. 277.

It was said in the late Oregon case of In Re Neil's Est., 107 Ore. 156, 214 P. 338:

"An adverse party, within the meaning of this section, is a party whose interest and relation to the decree appealed from is in conflict with the modification or reversal sought by the appeal. The parties not served did not see fit themselves to appeal, but abandoned the controversy, and no modification or reversal could affect them unfavorably."

That was said in disposing of a suggestion or motion for dismissal on the ground that certain parties who had appeared below to contest the identity and right of appellant as the heir to an estate had not been served with notice of the executor's appeal.

Applying the rule that the interest of a party must be such as would be prejudicially affected by a reversal or modification of the judgment, it was said in California, Randall v Hunter, ...