Stephens v. Stevens

75 P. 619 | Utah | 1904

LEWIS, District Judge.

This action was brought by the respondents against the appellants to recover on an alleged liability on stock subscription in the South Ogden Land, Building & Improvement Company. Appellants in their answer and cross-complaint .set up, among other things, that there was a nonjoinder of parties defendant in the action, alleging that Solomon C. Stephens, William J. Stephens, and David Kay were stockholders in said corporation at all times since the organization thereof, and were necessary parties defendant in the action, equally liable with the appellants, in proportion to the shares respectively held and owned by them in said company, and that a complete determination of the matters involved in the action could not be had without the presence of the said Solomon C. and William J. Stephens and said David Kay as parties thereto; and thereupon prayed that said Solomon 0. and William J. Stephens and said David Kay be made parties defendant in the action. After a hearing said Stephenses and said Kay were made parties defendant. Solomon C. and William J. Stephens appeared in person and filed their answer; David Kay made no appearance, no process having been served upon him, he being absent from the State of Utah and a nonresident thereof at all times during the pendency of the action. Judgment was rendered in favor of the plaintiffs, and against the defendants Sidney Stephens, Frank J. Stevens, Sidney 0. Stevens, William J. Stephens, and Solomon 0. Stephens, for the sum of $12,903.96, subject, however, to the following: “That the defendant Sidney 0. Stevens in no event shall be liable for or compelled to pay of the principal amount of said judgment to exceed $850.00, and that the defendant Frank J. Stevens in no event shall be liable for or compelled to pay of the principal amount of said judgment to exceed $850.00, it being the intent hereby that in no event shall the defendants Sidney 0. Stevens and Frank J. Stevens be compelled to pay, or that this shall he construed to he a judgment against either of them for a sum greater than $850.00 each, which is hereby determined to he the amount of their liability to the South Ogden Land, Building & Improvement Company, and to the plaintiffs herein. It is further ordered and decreed that plaintiffs recover of and from the defendants their costs taxed at $-; also that in case any of the defendants in this action shall pay or be compelled to pay a sum in excess of their pro rata share as shown by the findings of fact and conclusions of law in this case, that after such payments have been made, and upon application to the court, a judgment of this court may he entered, against the other defendants for such excess. ’ ’ The defendants Sidney Stevens, Frank J. Stevens, and Sidney O. Stevens, moved the court to vacate the judgment and to grant a new trial, and upon the denial of the motion gave notice of an appeal to this court. The notice of appeal was directed to and served upon the attorneys for the plaintiffs only, and no notice of appeal was served upon the defendants Solomon C. Stephens and William J. Stephens, or either of them. The evidence shows that said defendants, Solomon O. and William J. Stephens, are-the'husbands, respectively, of Mary E. Stephens and Zylpha J. Stephens, the plaintiffs and respondents herein; that the answer of defendants Solomon C. and William J. Stephens was drawn and filed for them by one of the attorneys for the plaintiff ; that said Solomon C. and William J. Stephens had no objections to the plaintiffs’ getting judgment against the Stevenses, but they, Solomon C. and William J. Stephens, testified that they had no interest in the plaintiffs ’ recovery in the action.

Respondents move this court to dismiss the appeal, for the reason that no notice of appeal was served upon the defendants Solomon C. and William J. Stephens, they being “adverse parties” witbin the meaning of section 3305 of the Revised Statutes of Utah of 1898, as amended by the Laws of 1899, p. 83, c. 62. Adverse parties, within the meaning of this section, are all parties whose interests require that the order, judgment, or decree appealed from be sustained. It is immaterial whether such party appeared as one of the original parties to the action, or was brought in by order of the court. “It is obvious that to reverse.the final judgment and grant the appellant a new trial will be to overturn all the proceedings and leave the parties in the same situation as though the case had never been tried. No one could know what the ultimate result would be, and it will not be presumed that codefendants who have not been served with notice of appeal have no interest in the judgment which would be in conflict with the reversal. Any aggrieved party may, without joining any one else, regardless of the character of the judgment against him, appeal from the whole or any specific part thereof; but’ in order to maintain his appeal he must serve notice on all other persons who are interested in opposing the relief which he seeks, and a person who has once appeared in an action is a necessary party to the appeal, unless after his appearance he has ceased to have an interest in such action.” Bank v. Savings, Loan & Building Co., 13 Utah 189, 44 Pac. 1043. Appellants made their codefendants parties for the purpose of enforcing contribution from them in the suit in case the plaintiffs succeeded, and these codefendants are now interested in maintaining the judgment against the appellants for the purpose of enforcing contribution against the appellants in the event of the nonappealing defendants paying more than their proportionate share of the judgment.

We are of the opinion that the notice of appeal should have been served upon the defendants Solomon C. and William J. Stephens, and therefore the motion to dismiss the appeal is sustained, at appellants’ costs.

BASKIN, C. J., and BARTCH, J., concur.