87 P. 1091 | Utah | 1906
Plaintiff, as administratrix of the estate of Herbert J. Griffin, brought this action against the Southern Pacific Com
But appellant contends that Austin is not in any sense, an “adverse party,” as is contemplated by section 3305, Revised ■Statutes 1898, which provides that
“An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered, a notice stating the appeal from the same, or some specified part thereof - and serving a similar notice on the adverse party or his attorney.” >
In the case of Bank v. Loan & Building Co., supra, this court, in harmony with the weight of authority, held that an adverse party, within the meaning of the statute, includes “all defendants whose interests would be injuriously affected by a reversal or modification of the judgment.” This doctrine was reaffirmed in the case of Rache v. Stanley, supra. The ques
The Supreme Court of California in the case of Senter v. De Bernal, 38 Cal. 637, in construing a statute similar to the one under consideration, said:
“The question is as to the meaning of the words ‘adverse party’ as here used, and as to that we think there can he no rational doubt. Bach party whose interests 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.”
Tbe federal courts have, iu a long line of decisions, uniformly adhered to this rule. The following are a few of the more recent cases wherein it is held that, in order to confer jurisdiction on an appellate court of cases wherein the judgment appealed from is joint, all the parties against whom the judgment is rendered should join in the writ of error, and, if any of them refuse to- join, then the record must disclose that the party or parties not joining were served with notice. (Hardee v. Wilson, 146 U. S. 181, 13 Sup. Ct. 39, 36 L. Ed. 933; Mason v. U. S., 136 U. S. 581, 10 Sup. Ct. 1062, 34 L. Ed. 345; Inglehart v. Stansberry, 151 U. S. 72, 14 Sup. Ct. 237, 38 L. Ed. 76; Davis v. Mercantile Trust Co., 152 U. S. 593, 14 Sup. Ct. 693, 38 L. Ed. 563; Beardsley v. Ark. &
The appeal is dismissed, and the judgment of the trial court affirmed, with costs.