209 P. 886 | Idaho | 1922
In this case, on the 15th day of June, 1921, in the district court of Fremont county, judgment was entered in favor of respondent and against appellant for the sum of $2,736.30, which judgment was immediately assigned to B. H. Miller. On the 12th day of September, 1921, appellant served and filed his notice of appeal.
The assignee, B. H. Miller, now moves to dismiss said appeal on the ground “That the notice of appeal itself discloses that E. EL Sherman, respondent, is the only person served with such notice of appeal; that all adverse parties on this proceeding have not been served with notice of appeal, to wit, B. H. Miller, and that said B. H. Miller is the real party in interest, and the real adverse party in this proceeding. That the appellant had notice that B. EL Miller is the real party in interest and the real adverse party on this appeal.”
The motion to dismiss is based upon the affidavit of B. El. Miller and the files and records in this case, but it nowhere appears in the record on appeal that Miller is an adverse party as contemplated by C. S., see. 7153.
In the case of The Diamond Bank v. Lu Van Meter, 18 Ida. 243, 21 Ann. Cas. 1273, 108 Pac. 1042, this court said: “ ‘Adverse party’ as used in this section (R. C., sec. 4808 now C. S., sec. 7153) of the statute means every party who has an interest in conflict with the reversal of the judgment or whose rights might be adversely or injuriously affected
The “adverse party” referred to by the statute means one who is shown by the record on appeal to be such adverse party. It is necessary to serve only the parties, who, from the record of the proceedings in which the appeal is taken, appear to be adverse. (Potrero Nuevo Land Co. v. All Persons Claiming, etc., 155 Cal. 371, 101 Pac. 12; Mohr v. Byrne, 132 Cal. 250, 64 Pac. 257; In re Bullard’s Estate, 114 Cal. 462, 46 Pac. 297; 3 C. J. 1220; 2 R. C. L., p. 111, sec. 86; 13 Ann. Cas. 182, note; Hayne’s New Trial and Appeal, sec. 210.) It cannot be shown by affidavits outside of this record. (Kenney v. Parks, 120 Cal. 22, 52 Pac. 40; In re Ryer’s Estate, 110 Cal. 556, 42 Pac. 1082; Hayne’s New Trial and Appeal, sec. 210.)
The record on appeal not showing B. H. Miller to be an adverse party, his motion to dismiss the appeal must be denied. It is so ordered, with costs to appellant.