143 P. 228 | Utah | 1914
Lead Opinion
This action was commenced by the respondent, Henry H. Allen, to recover upon a promissory note for $2,000, of which W. F. Gamer and the appellants, O. D., T. H., and Alma Merrill, were makers. A default was entered against the defendant Garner in August, 1911, upon which judgment was finally entered against him for said sum of $2,000 and accrued interest on the 28th day of August, 1913. The appellants, O. D., T. H., and Alma Merrill, filed an answer,
“This court has not jurisdiction to hear an appeal from a judgment, unless the appellant shall have served a notice of appeal on all the adverse parties; that is to say, upon all whose rights may be affected by a reversal of the judgment.”
Again, in the case of Millikin v. Houghton, 75 Cal. 541; 17 Pac. 641, it is said:
“It may be said the objection cannot come from the moving respondents here, as they can suffer no injury by appellant’s failure to notify the other defendants. The answer is the objection goes to the jurisdiction of the court to hear and determine the appeal, and the right to make the objection by any respondent before the court has been often recognized.”
This seems to be the trend of all the authorities which emanate from jurisdictions where there is a positive and inflexible time limit within which notice of appeal must be served or a waiver of such notice be filed. We cannot legally hear nor determine an appeal unless it is taken within the time fixed by the statute. If we may not do that where none of the parties to the appeal are timely served with notice of appeal or have waived the notice and service thereof within the time limit, we may not do so if only one or more of the necessary parties to the appeal have not been served or have waived notice of appeal and service thereof within the time within which an appeal may be taken. Counsel for appellants, however, contend that Mr. Garner is a non-resident of this state- and therefore the rule respecting notice and service thereof should not apply as to him. It, of course, requires no argument to show that while non-residents may affect the kind of notice and manner of service, yet it cannot dispense with the necessity of giving notice. If authority be required for this elementary proposition it is to be found in the ease of Lapham v. Bailey, 61 Kan. 861; 60 Pac. 743.
The appeal is therefore dismissed at .appellants’ costs.
Rehearing
ON APPLICATION POR REHEARING.
“An appeal will not lie dismissed by reason of the omission of certain persons who were parties to the suit in the court below, if they have no interest in maintaining or reversing the decree.”
This is precisely the doctrine adopted by this court, and which is adhered to in the opinion filed in this case. "We need not pursue the subject further, since it is manifest from the cases cited by counsel that they have no' application to the case at bar, and, further, that the opinion already filed is sound both upon reason and principle. It is but just to counsel to state that they, in citing the foregoing cases, assumed that the whole of the judgment against Mr. Garner was void, and that he had no concern whatever whether it was affirmed or reversed. In that assumption, as we have seen, counsel are in erroir.
We remark that the notice of appeal in this case is also clearly defective, if not entirely void. The notice recites that the appeal is “from the judgment made and entered in said court on the 5th day of June, 1913,” etc. The only judgment against appellants which is incorporated into the judgment roll is dated on the 27th day of February, 1913. It is true that an appeal is also taken from an order overruling appellants’ motion for judgment on the special findings of the jury made on the' 23d day of May, 1913, and likewise from the order denying their motion for a new trial dated July 8, 1913. Those two orders are, however, not appealable in this jurisdiction, and the order denying the motion for a new trial is important only because it is that order which makes the judgment final and appeal-able, and because the time within which an appeal may be taken dates from the making of that order. Both these orders, if properly preserved in the record, could, however, have been assigned as error and when so assigned could have been reviewed by this court. The notice of appeal in this ease can be deemed sufficient only in case we entirely disregard the date of the judgment which is named therein and by looking alone to the date of the order denying the motion for a new trial, which order is a part of the judgment roll. It will thus be observed that the reasons why we can
The other objections urged by appellants in support of their petition for a rehearing have no merit and need no further consideration.
For the reasons stated, nothing could be gained by granting a rehearing in this ease, and the petition is therefore denied.