Cook v. Miller

168 P. 911, 30 Idaho 749, 1917 Ida. LEXIS 114

• Court: Idaho Supreme Court
• Decided: August 29, 1917
• Status: Published

Opinion

BUDGE, C. J.

S. C. Miller was appointed receiver of the Sunbeam Consolidated Gold Mines Company, in an action brought in the district court of the sixth judicial district, in and for Custer county, wherein one H. C. Edwards was plaintiff and the above-mentioned company defendant, and as such receiver sold certain portions of the company’s property to the Custer Slide Mining Company, which sale was confirmed by an order of the district court. This appeal is from the order of confirmation- and is prosecuted by certain other judgment creditors of the company, all of whom appeared in the trial court and filed their joint and several protests against confirmation of the sale.

Edwards and the Custer Slide Mining Company appeared in this court and moved to dismiss the appeal on the ground that they and certain other adverse parties had not been served with notice of appeal. The attorney for appellants filed an affidavit in which he stated that he had mailed a copy of the notice to Milton A. Brown, the only attorney, as appellant contends, appearing of record, in relation to any of the matters involved in this appeal. The record discloses that Milton A. Brown was the attorney for the receiver.

It is not contended, nor is any showing made, that any of the other parties were served, either the plaintiff, defendant, the purchaser at the receiver’s sale, or the other creditors who appeared upon the hearing. In order for this court to have jurisdiction of a cause, it must affirmatively appear that all of the adverse parties whose interest would be affected by a reversal or modification of the judgment or order appealed from have been served with the notice of appeal, and if it does not so appear, this court is powerless to go into the merits of the appeal. In the case at bar, so far as appears from the record, no one of the adverse parties has been served with the notice of appeal, and the ease must be dismissed. (Anderson v. Knott, 1 Ida. 626; Tootle v. French, 3 Ida. 1, 25 Pac. 1091; Adams v. McPherson, 3 Ida. 718, 34 Pac. 1095; Doust v. Rocky Mountain Bell Tel. Co., 14 Ida. 677, 95 Pac. 209; Diamond Bank v. Van Meter, 18 Ida. 243-248, 21 Ann. Cas. 1273, 108 Pac. 1042; State Bank v. Watson, 27 Ida. 211, 148 Pac. 470, and cases therein cited; section 4808, Rev. Codes.)

But even if we should regard appellant’s affidavit as sufficient showing that the attorney for the receiver was properly served with the notice of appeal, still there being no service thereof on the other adverse parties, this court is without jurisdiction to entertain the appeal. (Bridgham v. National Pole Co., 27 Ida. 214, 147 Pac. 1056; Berlin Mach. Works v. Bradford-Kennedy Co., 21 Ida. 669, 123 Pac. 637; and eases cited supra.)

The appeal is dismissed. Costs awarded to H. C. Edwards and' the Custer Slide Mining Company.

Morgan and Rice, JJ., concur.

Petition for rehearing denied.