Miller v. Wallace

143 P. 524 | Idaho | 1914

SULLIYAN, C. J.

This action was brought to foreclose a mortgagé on real estate given by the defendant Wallace to the plaintiff Miller. Subsequent to the giving of the mortgage and prior to the commencement of the action, certain parties acquired an interest in the premises and were rqade parties defendant. A decree of foreclosure was entered and a sale thereunder had.

After the giving of said mortgage, the premises had been subdivided and the sale was made in separate parcels. The property sold for enough, so that there remained no deficiency. One of the defendants, Roberts, after the sale, moved to set the sale aside. This motion was overruled and the appeal is from the order denying the motion. He served his notice of appeal on the plaintiff Miller, but not on any of his co-defendants, and the appeal now comes up on the motion of plaintiff Miller to dismiss the appeal on the ground that the notice of appeal was not served on all of the adverse parties.

The record shows that the property sold for sufficient to satisfy the mortgage and costs. The decree of foreclosure provided for a deficiency judgment against Wallace, provided the property did not sell for sufficient to pay the mortgage debt with interest and costs. Thus it is shown that Wallace is vitally interested in the matter and may be injuriously affected provided the sale is set aside and a new sale made. If on a resale the property should not sell for sufficient to pay said indebtedness and costs, a deficiency judgment would be entered up against Wallace. The defendant O’Donnell might also be adversely affected by the setting aside of said sale.

On an appeal either from the judgment or an order, the notice of appeal must be served on all parties to the action, or their attorneys, who might be affected by a reversal or modification of the judgment or order. (See see. 4808, Rev. Codes.) In the case of Diamond Bank v. Van Meter, 18 Ida. 243, 108 Pac. 1042, 21 Ann. Cas. 1273, many of the decisions of this court upon the point under consideration are cited.

• The notice of appeal not having been served upon all of the parties who might be affected by a reversal of the order appealed from, the motion must be sustained and the appeal dismissed, and it is so ordered. Costs awarded to the respondent.

Truitt, J., concurs.