13 Utah 189 | Utah | 1896
This action was brought against Ogden City, Achilles Perrin, as probate judge of Weber county, Utah, and the appellant, to quiet title to certain land, part of which is described in the complaint as “lots 1, 5, and 9 in block 2” of a certain subdivision in Ogden City. The appellant, after admittng its own corporate existence, and that of Ogden city and Weber county, denies the other material allegations of the complaint, and then, asserting its own claim to the land in question, it avers that it holds a valid and totally unsatisfied mortgage upon said premises, and
On the record thus at considerable length referred to, the respondent challenges the standing of the appellant in this court by motion to dismiss the appeal on the! ground that it failed to serve notice of appeal on any of its co-defendants, or on any of the parties brought into the case by its cross complaint. The proposition contended for is that all the co-defendants are adverse parties, and that the appellant was bound to serve each of them with
Counsel for the appellant insist, however, that the co-defendants in this case are not adverse parties, and do not come within the rule above stated. In their brief, in reply to the respondent, they say: “But we are not seeking to recover a greater judgment against the defendants Otón and Lundy, who are not served with notice of appeal, and we ask no modification of the decree of the lower court which will in any manner affect their interests, prejudicially or otherwise, except probably to decrease the deficiency judgment which may be docketed against them, and perhaps to wipe it out altogether.”
Whether or not the court erred in excluding lot 5 from the mortgage, as is contended by counsel for the appellant, how can it be said that the appellant is not seeking a greater judgment against Orton and Lundy, and that they are not, under the circumstances of this case, adverse parties? The fact that they were made parties by order of court is immaterial. Nor, under the circumstances disclosed by the record, is the fact that they did not answer material. They are both necessary parties to the suit, and liable for a deficiency judgment, and are interested in the judgment which it is sought to reverse, and therefore common justice requires that no change or modification of the same shall be made, or new trial granted, without giving them an opportunity to be heard. All the co-defendants whose interests would be injuriously affected by a reversal or modification of the judgment were entitled to be heard in the appellate court, and a failure to serve notice on any one of them is fatal to the appeal. The appeal is not taken from any specific
It is obvious that to reverse the final judgment and grant the appellant a new trial would be to overturn all the proceedings, and leave the parties in the same situation as though the case had never been tried. No one could know what the ultimate result would be, and it will not be presumed that co-defendants, who have not been served with notice of appeal, have no interests in the judgment, which would be in conflict with a reversal. Any aggrieved party may, without joining anyone else, regardless of the character of the judgment against him, appeal from the whole or any specific part thereof; but in order to maintain his appeal he must serve notice on all other persons who are interested in opposing the relief which he seeks, and a person who has once appeared in an action is a necessary party to the appeal, unless, after Ills appearance, he has ceased to have an interest in such action. Davis v. Trust Co., 152 U. S. 590, 14 Sup. Ct. 693; O’Kane v. Daly, 63 Cal. 317; Casey v. Oakes (Wash.), 42 Pac. 621; Adams v. McPherson (Idaho), 34 Pac. 1095; Whipley v. Mills, 9 Cal. 641; Hughes v. Miller (Kan. Sup.), 42 Pac. 696; Bank v. Bokien, 5 Wash. 777, 32 Pac. 744. We think the appellant failed to notify all the adverse parties in this case, and that such failure is fatal to its appeal. The motion to dismiss is sustained.