74 P. 529 | Idaho | 1903
Lead Opinion
This is a motion to dismiss the appeal on three several grounds, to wit: 1. That a copy of notice of appeal was not served on the defendants, the Alamance Mining Company and John N. Ward; 2. That a copy of the transcript ■on appeal was never served upon respondents or their attorney; and 3. That the notice of appeal was not served within the time provided by law. There is nothing in the second and third grounds of the motion, as the notice of appeal, as shown by the record, was served in time, and a substantial copy of the transcript was served upon the attorney of the respondents.
As to the first ground of said motion: It is contended by counsel for appellant Jones that as the defendants, the Alamance Mining Company and John N. Ward, were in default and failed to appear in said action, it was not necessary to serve either of them with the notice of appeal, and cite in support of that contention Aulbach v. Dahler, 4 Idaho, 522, 43 Pac. 192, and cases from California and Washington.
Section 4808, Bevised Statutes, provides inter alia that 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.
Section 4807, Bevised Statutes, provides the time in which appeals may be taken, and section 4932, Bevised Statutes, prohibits the extension of the time fixed by law for the service of the notice of appeal.
Senter v. De Bernal, 38 Cal. 637, is the leading ease in California under section 940 of the California Code of Civil Procedure, which is identical with our section 4808, and construes the term “adverse part}'” as follows: “Every party whose interest in the subject matter of the appeal is adverse to or will be affected by the reversal or modification of the judgment or order from which the appeal has been taken is, we think, an adverse party within the meaning of these provisions of the code, irrespective of the question whether he appears upon the face of the record in the attitude of plaintiff or defendant or intervener.” This question has been passed upon a number of times by the supreme court of that state, and in Notes on California Reports, volume 3, at page 134, the decisions are cited.
In Jones v. Quantrell, 2 Idaho (Hasb.), 153, 9 Pac. 418, the case of Senter v. De Bernal, supra, is cited with approval. See, also, Coffin v. Edgington, 2 Idaho (Hasb), 627, 23 Pac. 80; Lydon v. Goddard, 5 Idaho, 607, 51 Pac. 459; Lewiston Nat. Bank v. Tefft, 6 Idaho, 104, 53 Pac. 271.
The supreme court of this state in Aulbach v. Dahler, 4 Idaho, 522, 43 Pac. 192, construes the term “adverse party,” and there holds that as separate judgments were entered against the defendants on whom the notice of appeal was not served, they could not be affected by a°modification or reversal of the judgment entered against the appellant defendant. The court in that case did not intend to, and did not, change the rule as laid down in any of the above-cited cases; while the latter part of
It is clear that the Alamance Mining Company would be affected by a modification or reversal of the judgment appealed from, and should have been served with the notice of appeal.
Section 4889 et seq., Revised Statutes, provides how notices and other papers may be served. Under subdivision 2 of said section a nonresident defaulting defendant may be served with, a notice of appeal by depositing the same in the postoffice.
The motion to dismiss must be sustained, and it is so ordered, with costs in favor of the respondent.
Rehearing
PETITION EOR REHEARING.
A petition for a rehearing has been filed in this case, and after giving it careful consideration we think no reason is presented for granting a rehearing, and therefore a rehearing is denied.