197 P. 584 | Utah | 1921
Lead Opinion
Delta Land & Water Company and H. B. Prout, respondents herein, have interposed a motion .to dismiss the appeal of plaintiff, the appellant, for the reason that the notice of appeal was served neither upon A. M. McPherson, one of the defendants, nor upon his attorney.
In the district court the Delta Land & Water Company demanded security for costs on the ground that the plaintiff was a nonresident of the state of Utah. This motion was made after the case had been removed to the federal court and by that court remanded to the state court in which the action was instituted, and a year after the defendants had filed their answer. The bond not being furnished, a motion was made to dismiss the suit. Plaintiff’s counsel was not present in court when the motion was submitted, but submitted the question upon a letter furnished court and counsel. The letter made reference to matters appearing of rec
The statute provides that an appeal to the Supreme Court shall be upon the record made in the district court. A new record cannot be made here. Assuming that
In Badertscher v. Independent Ice Co. et al., 55 Utah 100, 184 Pac. 181, a motion for nonsuit by the Independent Ice Co. was granted, and that of its codefendant, the Wasatch Coal Company, was denied, and the trial proceeded against the coal company alone. On appeal from a judgment against it, the coal company failed to serve notice of appeal on the ice company. The plaintiff filed a -motion to dismiss the coal company’s appeal claiming the ice company to be an adverse party, and hence a necessary party to the appeal. It was held by this court that the contention of plaintiff in that case was without merit.
The Utah cases in which appeals were dismissed because of nonservice of notice of appeal on codefendants are mentioned and distinguished in Badertscher v. Independent Ice Co., supra. All those cases are distinguishable from the instant case. The test is—
“That the omitted party must be -affected by a modification or reversal of the judgment appealed from. If a party would not he affected he is not a necessary party, and hence to omit to serve*141 him with notice of appeal * * * is not fatal to the appeal.” Langton L. & C. Co. v. Peery, 48 Utah, 112, 159 Pac. 49.
Not baving joined in the demand for security, McPherson would not be affected by a reversal of the judgment of dismissal, and hence the omission to serve him with
The motion to dismiss the appeal is therefore denied.
The facts presented on this appeal are identical with those in Forbes v. Delta Land & Water Co., 57 Utah 200, 193 Pac. 1097. On authority of that case it is therefore ordered that the judgment of dismissal be vacated, and the cause remanded to the district court, with directions that plaintiff be ordered and required to furnish security for costs in favor of those defendants who have demanded or may demand the same, and that said bond be furnished within 30 days after notice of such requirement, and in ease plaintiff fails to furnish bond as required the district court shall dismiss plaintiff’s action as to all defendants who demanded security for costs, and that such dismissal be without prejudice; parties to this action to each pay one-half of costs' on appeal.
Dissenting Opinion
(dissenting). This court, in Griffin v. Southern Pac. Co., 31 Utah, 296, 87 Pac. 1091, gave its approval to the language of the Supreme Court of California in defining the words “adverse party” used in the Code respecting appeals as follows:
“Each, party wliose interest in the subject-matter of the appeal is adverse to, or will be affected by, the reversal or modification of the judgment or order from which the appeal has been taken, is, we think, an ‘adverse party’ within the meaning of these provisions in the Code, irrespective of the question whether he appears upon the face of the record in the attitude of a plaintiff or defendant or intervener.” Senter v. De Bernal, 38 Cal. 637.
So long as that opinion and the Utah eases cited are not modified or overruled, I can see no reason for ignoring'or refusing to apply the rule announced in those cases. In the
“A new trial might result in' a judgment being entered for a sum far in excess of the amount of the judgment appealed from, in which case it is obvious that Austin’s interests would be materially and injuriously affected by a reversal of the case; and this, too, regardless of whether the case is reversed as to both of the defendants, or as to the Southern Pacific Company only.”
In the present case one McPherson is a joint defendant with the respondent water company. The order dismissed the case as to all of the defendants. .The order of reversal will of necessity reinstate the case against all defendants. I think I am justified in assuming that McPherson is satisfied in having the order of dismissal stand, and also that his interest “would be materially and injuriously affected by a reversal of the case.”
In my opinion the appeal should be dismissed. I therefore dissent.