This сause is now before us on the motion of plaintiff-respondent Union Bond & Mortgage Company to dismiss the appeal insofar as it purports to 'be an appeal from the order denying the motion for new trial below. The appeal has been previously dismissed to that extent as to defendant-respondent H. P. Brown upon his motion (same title (1936) 64 S. D. 600, 266 N. \Y. 720) upon the ground that the said PI. P. Brown was an adverse party under the statute and a necessary party to the appeal, and that he was not served with notice of intentiоn to1 move for new trial, nor with the transcript and specifications of error, nor with notice of motion for new trial. As to respоndent H. P. Brown, therefore, the matter stands as an appeal from the judgment only upon the judgment roll. Plaintiff-respondent contends in support of its motion that the appeal, so> far as it is concerned, cannot be permitted to proceed upоn any broader or more comprehensive basis than as against respondent H. P. Brown. As to him, appellant has not succeeded' in perfecting any appeal from the denial of his application for new trial. The guiding principle is laid down in Hayne оn New Trial and Appeal, Revised Edition, p. 1122, as follows: “This test may be fairly said to 'be, that if the reversal or modification of the judgment or order appealed from, as contended for by the appellant, cannot be accomplished without adversеly affecting the interest of the party not served with notice, failure to make such service must be held fatal to the entire appeal.” That rule has been previously recognized by this court in Crouch et al v. Dak., etc., R. R. Co. (1908) 22 S. D. 263, 117 N.
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W. 145. In that case notice of aрpeal had been duly served upon the moving respondent, but the appeal was nevertheless dismissed upon the ground that “numerous parties to an action who' would be affected by a reversal or modification of an order appealed frоm neither joined in the appeal nor were served with notice thereof.” The right of a party respondent duly served with notice of the appeal to move for the dismissal thereof because of failure to serve other parties who would be affected by a reversal or modification has likewise been recognized by this court in Sutton v. Consolidated, etc., Mining Co (1900) 12 S. D. 576,
We do not understand appellant seriously to question the existence or propriety of the rule above stated, or its applica
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bility to the facts of this case, but appellant urges that respondent Union Bond & Mоrtgage Company 'has waived its right to invoke the rule. We think not. Under our practice no specific time is fixed for raising such a questiоn. The rights of Union Bond & Mortgage Company in this connection are derivative from and dependent upon the rights of respondent H. P. Brоwn. Respondent H. P. Brown raised! the question within two days after the filing of appellant’s brief by motion to dismiss, which motion was granted by opinion filed April 16, 1936. Appellant then kept the matter open by moving on his part on April 22, 1936, for leave to remand the record, which motion wаs pending undetermined in this court until its 'denial on May 26, 1936. Same title, 64 S. D. 428,
“To the above named appellant and to Messrs. Sterling, Clark and Grigsby, his attorneys:
“Herewith find two copiеs of brief of respondent in the above entitled action. This is intended as service by mailing.
“This is respondent’s brief in answer to all points rаised in brief of appellant.
“If, as a result of proceedings already had, or proceedings now pending in the Supreme Court, the issue on appeal should be narrowed down so as to cover only part of appellant’s assignment, as to the defendant H. P. Brown, respondent reserves its right to move that the scope of appeal be correspondingly narrowed1 as to it.”
Subsequently, and within a reasonable time after this court denied appellant’s motion to remand the record (thereby finally dеtermining that appellant had no appeal as against H. P. Brown so far as concerned the denial of his application for new trial and could not improve his situation by further proceedings in the trial court), plaintiff-respondent moved here for dismissal as to it. We think there has been no waiver.
*600 We see no escape from the conclusion that the motion of plaintiff-respondent for the same relief previously awarded to ■defendant-respondent H. P. Brown must be granted, and an order will accordingly be entered dismissing this appeal as to' plaintiff-respondent in so far as the same purports to be an appeal from the denial of motion for new trial below.