Fisher v. Chaffee, 96 Iowa 15

Fisher v. Chaffee

96 Iowa 15 | Iowa | 1895

Kinne, J.

I. Appellee files a motion to dismiss the appeal because no1 notice was served by appellant Fullerton upon either of his codefendants. As we have reached the conclusion, that this motion must be sustained, we shall only set out the facts, upon which said motion, is based. The petition alleged the appointment of the defendant Chaffee as guardian of Murray Fisher, a minor; the execution.of the usual bond signed by the defendants Fullerton and Yertrees as sureties; the receipt by Chaffee of two. thousand and forty-seven dollars belonging to. said minor1, on May 15, 1886; and *16avers that he has neglected to account therefor; that he has failed to comply with certain orders of the court; that he was removed, and the present guardian appointed. Defendants; Fullerton and Vertrees, only,, answer. They plead that in February, 1887, Chaffee, as such guardian, filed his report, which was duly approved by the judge of the court; that said report showed the receipt of two thousand dollars of plaintiff’s money; and that the same was loaned to Chaffee & Stark, upon the personal note of said firm,without other security; that said money had never been collected by Chaffee asi guardian, and was a valid claim against said firm. Other facts appear in the record, but, for the purposes; of the question presented by this motion, we need only state that, after a trial had, a judgment was entered against all of the defendants-, from which Fullerton alone appeals. • No- notice of the appeal was-served by Fullerton upon either of his codefendants.

II. Code, section 8174, provides: “A part of several co-parties; may appeal; but in such a case they must serve notice of the appeal up-on all the other-co'-parties, and file the proof thereof with the clerk of the supreme court.” It has been held that a failure to- serve the notice above provided for is not jurisdictional, but the court can- consider -such questions in the case as affect only the rights and interests of the-appellant and the adverse party. Wright v. Mahaffey, 76 Iowa, 96 (40 N. W. Rep. 112); Moore v. Held, 73 Iowa, 540 (35 N. W. Rep. 623); Kellogg v. Colby, 83 Iowa, 513 (49 N. W. Rep. 1001); Soukup v. Investment Co., 84 Iowa, 448 (51 N. W. Rep. 167); Day v. Insurance Co., 77 Iowa, 343 (42 N. W. Rep. 312); Payne v. Raubinek, 82 Iowa, 587 (48 N. W. Rep. 995); Wolfe v. Jaffray, 88 Iowa, 358 (55 N. W. Rep. 91); Ash v. Ash, 90 Iowa, 229 (57 N. W. Rep. 862); Chase v. Christenson, 92 Iowa, 405 (60 N. W. Rep. 640). The same doctrine is found in many other-cases. The test is, can this court vacate, modify, or *17reverse the judgment in this case without in any way prejudicing or affecting the rights of the other defendants? Chaffee is, of course, primarily liable in any event, and will not be affected by any reversal or modification of the judgment in this court. Yertrees is a cosurety with Fullerton on the bond. Yertrees does not appeal. Fullerton does, but serves no notice on Yertrees. Now, if Yertrees should pay the judgment in full, he would have a right of action against Fullerton, his cosurety, for contribution. But suppose this court should reverse the judgment as to Fullerton, should hold him not liable in the action; would such a reversal be without prejudice to the rights of Yer-trees? If Yertrees paid the judgment, could he still have recourse against Fullerton for one-half thereof? It seems to usi that any modification or reversal we may make of this judgment may affect the rights of Yer-trees, and work a prejudice thereto. We ought not, therefore, to consider this appeal, in the absence of service of notice upon Yertrees. The motion is sustained, and the appeal dismissed.