Gamble v. Seattle-First Nat. Bank

Full title: W.E. GAMBLE, Appellant, v. ALDER GROUP MINING SMELTING COMPANY et al.…

Court: The Supreme Court of Washington. Department Two

Date published: Jun 12, 1945

159 P.2d 624 (Wash. 1945)

159 P.2d 624

23 Wash. 2d 91

Opinion

No. 29551.

June 12, 1945.

APPEAL AND ERROR — REQUISITES AND PROCEEDINGS — PARTIES ENTITLED TO NOTICE. A purchaser at a receiver's sale becomes a party to the action; and where an appeal was taken from an order approving a receiver's sale and the purchaser thereat was not served with notice of appeal, the appeal will be dismissed.

SAME — APPELLATE JURISDICTION — NATURE AND GROUNDS. In order to confer jurisdiction upon the supreme court, notice of appeal must be given to all parties entitled to it under Rem. Rev. Stat., § 1720.

See 3 Am. Jur. 163.

Appeal from an order of the superior court for Spokane county, Witt, J., entered September 20, 1944, approving a receiver's sale. Appeal dismissed.

J.A. Aiken, Lucius G. Nash, and William E. Cullen, for appellant.

Ed B. Powell, for respondent.

BLAKE, J.

This is an appeal from an order entered September 20, 1944, approving a sale by the receiver of the Alder Group Mining Smelting Company.

At the threshold we are confronted with a motion to dismiss the appeal on the ground that no notice of appeal was served upon Mahlon McCain, the purchaser at the receiver's sale.

[1] A purchaser at a receiver's sale becomes a party to the action ( Rice v. Ahlman, 70 Wn. 12, 126 P. 66), and if he is not served with notice of appeal, the appeal must be dismissed. Raymond Co. v. Little Falls Fire Clay Co., 72 Wn. 209, 130 P. 93. See, also, Robertson Mortgage Co. v. Thomas, 63 Wn. 316, 115 P. 312.

[2] Appellant seems to take the position that the decisions cited are not controlling because, on the merits of the appeal, he challenges the jurisdiction of the superior court in its order appointing the receiver, and in all subsequent proceedings.

Assuming the position is sound, it avails appellant nothing, for this court has no jurisdiction of the cause. In order to confer jurisdiction on this court, notice of appeal must be given to all parties entitled to it under Rem. Rev. Stat., § 1720 [P.P.C. § 5-13]. Winters v. Grays Harbor Boom Co., 19 Wn. 346, 53 P. 368; Pierce v. Commercial Inv. Co., 31 Wn. 655, 72 P. 473. In the former case, the court said, p. 347:

"We have repeatedly held that the notice of appeal is jurisdictional and cannot be dispensed with, and the court can only obtain jurisdiction when the statute on the subject of appeals is complied with."

Appeal dismissed.

BEALS, C.J., ROBINSON, SIMPSON, and MALLERY, JJ., concur.

July 26, 1945. Petition for rehearing denied.