Opinion
No. 5443.
December 7, 1929.
APPEAL from the District Court of the Tenth Judicial District, for Idaho County. Hon. W.F. McNaughton, Judge.
Motion to dismiss appeal. Appeal dismissed.
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 Pac. 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 Pac. 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.
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 the notice of appeal was neither addressed to nor served upon him. By affidavit, it appears that the attorney for the appealing defendants was likewise the attorney for Luke Clinkenbeard and therefore it was unnecessary to make separate service. ( Weeter Lumber Co. v. Fales, 20 Idaho 255, Ann. Cas. 1913A, 403, 118 P. 289.) In other words, the substance of the above opinion on this point is that representation by the same attorney of an appealing and nonappealing party has the effect of service of the notice of appeal on the non-appealing party.
The decree quieted title in the respondent to certain mining claims and also gave damages and costs against all three of the above-named defendants, jointly and severally.
It is apparent that Luke Clinkenbeard was an adverse party who might be prejudicially affected by a reversal or modification of the decree. ( Titiman v. Alamance Min. Co., 9 Idaho 240, 74 P. 529; Diamond Bank v. Van Meter, 18 Idaho 243, Ann. Cas. 1912A, 1, 108 P. 1042, J. R. A. 1915B, 1016; Glenn v. Aultman Taylor Machinery Co., 30 Idaho 727, 67 P. 1163; Bannock Nat. Bank v. Automobile Accessories Co., 36 Idaho 527, 212 P. 864.)
This court has held that failure to direct the notice of appeal to an adverse party, though such notice was served on such party, is a fatal defect. ( Mahaffey v. Pattee, 46 Idaho 16, 266 P. 430.)
The appeal is dismissed. Costs to respondent.
Budge, C.J., and T. Bailey Lee and Varian, JJ., concur.
The effect of the dismissal of the appeal is to affirm the judgment. I am of opinion that, on the merits, the judgment ought to be affirmed. I, therefore, concur in the conclusion.