Aulbach v. Dahler

43 P. 192, 4 Idaho 522, 1895 Ida. LEXIS 72

• Court: Idaho Supreme Court
• Decided: December 12, 1895
• Status: Published

Opinion

SULLIVAN, J.

This is an action brought by Adam Aulbach against the Bank of Murray, a corporation organized under the laws of this state, Charles L. Dahler, and Charles Hussey. The complaint shows that said Dahler was the president of said bank, and owned two hundred and fifty shares of the capital stock of said bank, and that Charles Hussey was secretary of said corporation, and owned two hundred and forty-seven shares of said stock, that the total capital stock of said corporation consisted of five hundred shares, of the par value-of $100 each. Summons was served by publication, and defendant Dahler appeared and demurred and answered. Default was entered- against the bank and Hussey for want of answer. The ease was tried by the court with a jury, and a verdict was returned as follows, to wit: “We, the jury in the above-entitled case, find for the plaintiff, and against the defendant, the Bank of Murray, for the sum of $2,995.59, and for costs of suit, and find that defendant, Charles L. Dahler, was the owner •of two hundred and fifty shares, which was one-half of the capital stock of the Bank of Murray, and that Charles Hussey was the owner of two hundred and forty-nine shares of said stock, which was one share less than one-half thereof, and find against said defendants, Dahler and Hussey, for the proportion of said sum of $2,995.59 which the number of shares held by each of them bears to the whole capital stock of the corporation, which we find to be five hundred shares. George D. Potter, Foreman, Filed July 27, 1894.” Thereupon the court entered a several judgment against the defendants as follows: Against the Bank •of Murray for $2,995.59; against Charles L. Dahler for $1,-497.70; against Charles Hussey for $1,491.80. This appeal is from the judgment made and entered against appellant, Dahler, and order overruling his motion for a new trial. On motion of respondent, the appeal was dismissed, on the authority of Jones v. Quantrell, 2 Idaho, 153, 9 Pac. 418, and Coffin v. Edgington, 2 Idaho, 627, 23 Pac. 80, on the point of failure to serve notice of appeal on the defendants, the bank and Hussey. This is a petition for rehearing of the motion to dismiss the appeal. The petition is based on two grounds: 1. The defendants, the Bank ■of Murray and Hussey, are not “adverse parties,” within the meaning of those words as used in section 4808 of the Revised ^Statutes, and are not entitled to service of notice of appeal: .2. ■On the ground that his said codefendants did not appear in the •court below, and judgment went against them by default.

The judgment being served, and for different amounts, ragainst each defendant, defendants, the Bank of Murray and •Charles Hussey, are not “adverse parties,” within meaning of 'the words “adverse party” as used in section 4808 of the Revised Statutes, because they have no interest in conflict with the reversal of the judgment against Dahler. (Hayne on New 'Trial and Appeal, see. 210.) As the modification or reversal •of the judgment against the appellant could not affect the liability of his codefendants upon the judgment rendered against them, notice of appeal need not be served on them. (Randall v. Hunter, 69 Cal. 80, 10 Pac. 130; Hinckel v. Donohue, 88 Cal. , 26 Pac. 374.) A reversal of the judgment appealed from would leave appellant’s codefendants in statu quo. Therefore,, this appeal can in no way affect their rights, and for that reason they are not entitled to be served with the notice of appeal. (See Foley v. Bullard, 97 Cal. 516, 32 Pac. 574.)

The defendants, the Bank of Murray and Charles Hussey,, failed to appear and answer, and judgment was entered against them by default. As service of summons was made by publication, a personal judgment entered against them would be-absolutely void. If that be true, they are not entitled to service of notice of appeal, as the reversal of the judgment against appellant could not affect them. If the judgments entered by default against the bank and Hussey be valid, said defendants, are not entitled to service of the notice of appeal as adverse parties, or at all, for the reason that they have admitted, by their default, the allegations of the complaint. In Boob v. Hall, 107 Cal. 160, 40. Pac. 117, the supreme court of California, under a statute identical with ours, holds that it is not necessary,, where one defendant appeals, to serve notice of appeal on other defendants, when, by default, they have admitted the avermentsof the complaint. (See, also, Randall v. Hunter, 69 Cal. 80, 10 Pac. 130; Essency v. Essency, 10 Wash. 375, 38 Pac. 1130; Seattle etc. Ry. Co. v. Johnson, 7 Wash. 97, 34 Pac. 567.) A rehearing should be granted and it is so ordered.

Morgan, C. J., and Huston, J., concur.