144 P. 647 | Idaho | 1914
This is an appeal from a judgment entered on sustaining a demurrer to the complaint.
In limine, we are met with a motion to dismiss the appeal on the ground that the notice of appeal was not served on the defendant Conrad Kissler. The action was brought against
The demurrer was sustained on two grounds, to wit: (1) That there was a misjoinder of parties defendant; and (2) that the complaint does not state facts sufficient to sustain a cause of action against the defendant Moss.
From the record it does not appear that the defendant Kissler was ever served with summons or appeared in the action. The demurrer was filed by the defendant Moss and the name of the defendant Conrad Kissler is not mentioned in the judgment. It is provided in the judgment as follows:
‘ ‘ That the plaintiff recover nothing herein from the defendant Moss and that the said defendant do have and recover from the plaintiff his costs and disbursements herein expended taxed at $-.”
The defendant Conrad Kissler not having been served with summons and not appearing in the action, it was not necessary to serve the notice of appeal on him, as the judgment entered in such action could in no manner affect him. A person may be named as a party to the action in the complaint, but if he is neither served nor appears in the action and no judgment is entered either for or against him, he is not an “adverse party” within the meaning of that term as used in sec. 4808, Rev. Codes. That being true, it was not necessary to serve the notice of appeal on him and the motion to dismiss must therefore be denied.
Now as to the merits of the ease: The action of the trial court in sustaining the demurrer and entering judgment in favor of Moss is assigned as error. It is alleged, among other things, in the complaint, that the plaintiff is the owner of a well-drilling outfit and engaged in the well-drilling business ; that in the operation of said business she employed the defendant Conrad Kissler as her agent and attorney in fact to conduct said business for her; that said Conrad Kissler. as her said agent, entered into a contract with the defendant Moss to drill for him a certain well on land owned by him in
Under the allegations of the complaint the trial court sustained the demurrer on the two grounds above mentioned. It is contended by counsel for the respondent that since the defendant Moss was not in any way interested in the outcome of this suit as to which one owned said judgment, Conrad Kissler or Mary Kissler, and that since the judgment had been obtained against him by the agent of Mary Kissler, and since said judgment had°been duly rendered against the defendant Moss for the full amount claimed, the plaintiff had no right to another judgment against him for the same debt.
This contention appears reasonable since under the demurrer of the defendant Moss he admits all of the allegations of the complaint which are well plead, and one of those allegations is that Conrad Kissler, as agent of the plaintiff, the appellant here, obtained a judgment against Moss for the identical service for which the plaintiff is seeking to obtaim a judgment in this case. Since the defendant Moss admits that
It is a little remarkable that the appellant did not require •her agent to transfer the judgment he held in trust for her to her, rather than bring this action seeking to get another judgment against Moss.
The trial court did not err in sustaining said demurrer and entering judgment dismissing the ease, so far as Moss was concerned.
The defendant Conrad Kissler, since this case was appealed, filed in this court his written waiver of notice of appeal and states in said waiver, among other things, as follows: “that he has no interest in said appeal or the judgment appealed from adverse to appellant or at all.” Under that state of facts the cause will be remanded to the trial court with instructions to enter judgment in favor of the appellant to the effect that she is the owner of said judgment against J. H. Moss for the sum of $860, with interest, and costs of suit taxed at $28.75, and that the defendant Conrad Kissler has no interest therein.
Costs of this appeal are awarded to the respondent.