Lind v. Lambert

236 P. 121 | Idaho | 1925

Respondent sold two automobiles to the Paysee Investment Company. The first was paid for but the second was not. Thereafter respondent sued the Paysee Investment Company for the purchase price of the second car and levied attachment on the first. The car was later sold to satisfy the attachment.

Appellant intervened and claimed the car levied upon as his. The jury returned a verdict in favor of respondent and against appellant. The court thereupon entered judgment for respondent against the Paysee Investment Company and dismissed the complaint of intervention. Thereafter on the hearing of appellant's complaint of intervention and the answer of the Paysee Company to such complaint, the Paysee Company refused to pursue its defense, where-upon the court entered the default of the company and adjudged appellant the owner and entitled to possession of the car as to the Paysee Investment Company.

Appellant appeals from the judgment entered against him, in favor of respondent.

Respondent moves to dismiss the appeal on the ground that a notice of appeal was not directed to nor served upon the defendant, Paysee Investment Company.

C. S., sec. 7153, provides in part: "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 specific part thereof, and serving a similar notice on the adverse party, or his attorney. . . . ."

"An adverse party, within the meaning of C. S., sec. 7153, means any party who would be prejudicially affected by a modification or reversal of the judgment or order appealed from . . . ."

"In the case of Nelson Bennett Co. v. Twin Falls Land WaterCo., 13 Idaho 767, 13 Ann. Cas. 172, 92 P. 980, in the course of that opinion this court said: 'Adverse parties upon whom notice of appeal must be served are such parties as a reversal of judgment would affect.' (Aulbach v. Dahler, 4 Idaho 522,43 P. 192; Titiman v. Alamance Min. Co., 9 Idaho 240,74 P. 529.) The words 'would affect' as used in these two decisions, mean 'adversely affect.' The statute intends that a notice of appeal should be served upon all parties who have an interest in conflict with a reversal of the judgment, or whose rights would be adversely affected by a reversal of such judgment. . . . . Where default is entered and the rights of the defendant cannot be prejudicially affected by further proceedings in the case, he is not entitled to any notice of such further proceedings." (Bannock Nat. Bank v. Automobile Accessories Co.,36 Idaho 527, 212 P. 864.)

The court in the above case, while granting the motion as to one of the appellants, denied the motion to dismiss the appeal of the intervenor because the question involved could not prejudicially affect the nonappealing defendants, and not because the parties had defaulted as to the intervenor, and were therefore adverse parties who should have been served.

In this case, the court, in entering the judgment appealed from, in effect found that the car belonged to the defendant, Paysee Investment Company, thereby making it subject to sale under execution, and satisfying the claim of respondent against the company, to the extent of the amount recovered from the sale. Should the judgment be reversed or modified in favor of appellant it would result in the setting aside of that satisfaction and instead of owing $172.95, the amount of the deficiency after sale, the Paysee Investment Company would be subject to an unsatisfied judgment debt of $1,007.75.

It is evident from the above that the defendant, Paysee Investment Company, would be adversely affected by a reversal or modification of the judgment. It does not appear that the Company was hopelessly insolvent so as to bring this case under the rule in Wright v. Spencer, 38 Idaho 447, 221 P. 846, and no notice of appeal having been served upon said company the appeal should be dismissed, and it is so ordered.

Costs awarded to respondent.

Petition for rehearing denied.