Ziegler v. RyanZiegler v. Ryan
In this action two insurance companies are joined with the рrincipal defendant. The case has been here before on two separate appeals. The first appeal is from an order sustaining .a demurrer to plaintiff’s complaint, 63 S. D. 607,
In this garnishment proceeding the defendant Ryan entered nо appearance whatever and showed no interest in the proceeding. *185 Judgment ‘was entered against the garnisheе defendants, no mention of any kind toeing made of Ryan, the principal defendant. From this judgment the garnishee defendants apрeal to this court tout did not serve their notice of apрeal upon defendant Ryan. Plaintiff contends that under the prоvisions of 'Section 3x46, R. C. 1919, the notice of appeal should hаve been served on Ryan, and because the notice wаs not served upon him, plaintiff now moves to dismiss the appeal. Under the provisions of Section 3146, R. C. 1919, a written notice of aрpeal must be served upon the “adverse party”, and whethеr Ryan is an “adverse party”, is the only question involved on this motion. Plaintiff claims that Ryan is an adverse party within the meaning of this statute; thаt he appeared and participated in the trial of the garnishee proceedings. This statement by plaintiff is misleading. While defendant was present at the trial and was on the witness stand аs a witness, he neither participated at the trial nor showed any interest whatever in the outcome of the trial. He was there in response to a subpoena served upon him by the garnishee defendants and was called to the witness stand toy such dеfendants and testified in their behalf, but he showed no interest 'whatevеr in the case and did not participate at the trial. Defendant Ryan never, at any stage of the case from the service of the original summons, employed counsel or enterеd an appearance of any kind or displayed the slightеst interest in the final outcome of the case.
“If a party to the action has failed to appear, he is not entitlеd to foe served with notice of appeal. The prinсipal defendant did appear in the main action, but he did not appear in the garnishment proceeding, which, toy said sеction 2468, is designated as an action against the garnishee and the principal defendant. Under these circumstances, and because of the failure of the principal defendаnt to appear in the garnishee proceedings, we do not believe that he was an adverse party there, within the meaning of said section 3146.”
For other cases on this same question see Sutton v. Consolidated Apex Mining Co., 12 S. D. 576,
The motion is denied.