60 Wash. 514 | Wash. | 1910
This is a motion to dismiss an appeal for-the reason, among others, that none of the appellants have served, or caused to be served, any notice of appeal upon all the parties or their attorneys of record. The action was to foreclose a mortgage by the Robertson Mortgage Company, against the Magnolia Heights Company, a corporation, L. E. Campbell, Whiton Hardware Company, a corporation, Robert Pettigrew, E. P. Jessup, and Jane Doe Jessup, his wife, Edward Connor and Mary Doe Connor, his wife, W. H. B. Thomas and Jane Doe Thomas, his wife, and the Westmoreland Company, a corporation. There was a judgment of foreclosure and a judgment barring all the defendants from asserting any claim to the land privileged other than was specified in the judgment. The parties had all appeared. The record shows that Edward Connor, Mary Doe Connor, E. P. Jessup and Jane Doe Jessup, defendants, were not served with notice of appeal, hence this motion to dismiss.
The complaint contained the ordinary allegation that the defendants claimed liens or 'interest in the said mortgaged property, the exact nature and extent of which to the plaintiff was unknown, but which the plaintiff alleged to be subsequent and subordinate to its interest. An affidavit is filed by attorney for appellants Thomas et ah, that he had examined the record and that it did not appear that an appearance had been made by these unserved defendants aforesaid, and that
It is unnecessary to review all the decisions of this court ■on the question involved. The authorities were all collated in Sipes v. Puget Sound Elec. R. Co., 50 Wash. 585, 97 Pac. 723, and there it was held that the motion to dismiss, because one Dimmock, who had been a party to the action and who had appeared and defended the action, had not joined in the appeal and had not been served, could not be sustained. The motion to dismiss was on the ground that the court had no jurisdiction, for the reason that the said Dimmock had not been served, and that therein there was a failure to comply' with Rem. & Bal. Code, § 1720, which provides that, when the notice of appeal is not given at the time when the judgment or order appealed from is rendered or made, it shall be served upon all parties who have appeared in the action or proceeding. The rule theretofore announced by .this court was somewhat modified in this decision, and it was held, in effect, that it was the object of the law to enforce notice of appeal oh parties who could appeal or join in an appeal, and whose rights would or might be affected by some action which the appellate court might take; but that, inasmuch as Dimmock could not appeal, for the reason that he had prevailed in the court below and that there was no judgment against him, the motion to dismiss could not prevail. But that is not the case here. Jessup and wife and Connor and wife did not prevail in the ac
The parties, then, having appeared in the action and hav-r ing a right of appeal, and not having been served with notice of appeal, for reasons stated too many times by this court to need a repetition, the motion to dismiss and affirm will be sustained. This renders unnecessary .a discussion of the other questions presented.
Rudkin, C. J., Chadwick, Crow, and Morris, JJ., concur.