Clayton v. Sievertsen, 115 Iowa 687

Clayton v. Sievertsen

115 Iowa 687 | Iowa | 1901

Ladd, J.

Jurisdictional facts, such as service of notice of appeal, must appear in the abstracts. Phillips v. Follet, 69 Iowa, 39; Baer v. Insurance Co., 86 Iowa, 752; Bowman v. Day, 86 Iowa, 746; Talbort v. Noble, 75 Iowa, 167. Their existence cannot be denied in argument. Anglo-Am. Agency v. Bush, 84 Iowa, 272. Nor can their omission be so supplied. “A part of several co-parties” in appealing “must serve notice of the appeal upon those not joining therein.” Section 4111, Code. This notice takes the place of the summons awarded on motion of the plaintiff in error at common law that other co-parties join in the appeal, and the severance granted on refusal permitting him to prosecute the appeal alone. Yet co-parties -not united in interest with appellant, those whose interests might not be affected by the adjudication of the appellate tribunal, were not necessary parties. See 2 Enc. PI. & Prac. 185 et seq. Our statute has therefore been construed to have no reference to co-parties not interested in the question to be decided. Moore v. Held, 73 Iowa, 538; Payne v. Raubinek, 82 Iowa, 589; Soukup v. Investment Co., 84 Iowa, 448; Wright v. Mahaffey, 76 Iowa, 96. Very evidently, as remarked in the last case, service of notice on such co-parties cannot be regarded as jurisdictional. But, when the co-party may be prejudicially affected by a modification or reversal of the order, judgment, or decree appealed from, then such service on him is essential to the consideration of any point so involving his interests; and without it the appeal will not be entertained. Hunt v. Hawley, 70 Iowa, 183; Day v. Insurance Co., 77 Iowa, 343 ; Fisher v. Chaffee, 96 Iowa, 15. And service of notice of ap*689peal on co-parties whose interests maybe affected is jurisdictional with respect to all questions involving such interests. Estis v. Trabue, 128 U. S. 225, (9 Sup.Ct. Rep. 58, 32 L. Ed. 437) ; Hamilton v. Blair, 23 Or. 64, (31 Pac. Rep. 197) ; Hunderlock v. Investment Co., 88 Ind. 139; In re Castle Dome Mining & Smelting Co., 79 Cal. 246 (21 Pac. Rep. 746.) As said in Elliot, Appeal Practice: “It certainly is jurisdictional whenever the nature of the case is such as to render it necessary to have all the. parties before the court in order to fully determine their rights.” Section 144. It follows that, unless it appear from the abstracts.that service of notice of appeal was had on all co-parties whose interests may be prejudicially affected by a modification of the decree the appeal must be dismissed. See Conrad v. Packing Co., 34 Or. 337, (49 Pac. Rep. 659, 57 Pac. Rep. 1021).

II. The record fails.to show the service of the notice of appeal on Anna or Hendrick Sievertsen, and the test to be applied is, can this court modify the decree as to Dennis without in any way prejudicing or affecting the rights of these defendants ? Judgment was entered against them only for the entire amount claimed. The co-defendant Dennis was interested solely as their grantee of the land on which the mortgage was foreclosed and assignee of their claim for damages for the alleged shortage in the acreage sold to them by plaintiff. In his answer and cross petition Dennis asked to be allowed $1,700, and “to that amount and extent the notes secured by said mortgage be canceled by credit thereon as of the date of said notes, and that judgment be entered against plaintiff accordingly.” He was denied this relief in the decree. This only he seeks on appeal. If granted, the reduction could not be applied on the judgment against the Sievertsens, as they have not appealed, and as against them the judgment must stand. Jenness v. Amber, 62 N. H. 569; Alexander v. Buffington, 66 Iowa, 360; Devoe v. Hall, 60 Iowa, 749; Charlton v. Sloan, 76 Iowa, 288; Butler v. Barkley, 67 Iowa, 491. But the decree directs that the land be first sold, the proceeds be applied in liquidation of the judg*690ment, and tbat general execution issue for the balance only. If, then, the amount of the lien be reduced by the value of ■ alleged shortage — the only relief which can be claimed by Deniiis, — to that extent the judgment will necessarily remain unsatisfied, and an absolute liability of the Sievertsens. The record indicates that in all probability the land will sell for enough to satisfy the judgment debt. Manifestly, then, to adjudge that part thereof shall not be satisfied from a sale of the land would to that extent affect the interests of the Sievertsens. Any modification would fix their liability and relieve the property of Dennis in precisely the same amount. As their interests would be prejudicially affected, the appeal must be dismissed.