Crouch v. Dakota, W. & M. R. R.

117 N.W. 145, 22 S.D. 263, 1908 S.D. LEXIS 67

• Court: South Dakota Supreme Court
• Decided: July 8, 1908
• Status: Published

Opinion

HANEY, P. J.

This is an attempted appeal from an order of the circuit court denying an application of the defendant railroad company and the defendant Muhlke to have a certain sheriff’s sale vacated and set aside. The notice of appeal was signed only by the railroad company and Muhlke. Respondents have moved to dismiss on the ground, among others, ¡that no notice of appeal was served upon Thomas Sweeney, Eben W. Martin, trustee, William T. Dyford, the Metropolitan Trust Company, Lorin PI. Bronte, defendants, and Frederick P. Read, intervener, or either of (them, and that each of them is an adverse party whose interest will be affected by a reversal or modification of the order attempted to be appealed from. “An appeal must be taken by serving a notice in writing, signed by the appellant or his attorney, on the adverse party, and on the clerk of the court in (which the judgment or order appealed from is entered.” Rev. Code Civ. Proc. § 441. Every party whose interest in. the '.subject-matter of the appeal is adverse to or will >be affected by a reversal or modification of the 'judgment or order appealed from is an “adverse party” within the meaning of the statute, irrespective of the question whether he appears upon the face of the record in the attitude of plaintiff, defendant, or in-tervener. Sutton v. Consolidated Apex Mining Co., 12 S. D. 576, 82 N. W. 188. “All (the parties to .a suit or proceeding who' ¡appear from the record to have an interest in the order, judgment, or decree challenged in the appellate court must be given an opportunity to be heard there before that court will proceed to a decision upon the merits of the case.” Dodson v. Fletcher, 78 Fed. 214, 24 C. C. A. 69; Grand Island & W. C. R. Co. v. Sweeney, 103 Fed; 342, 43 C. C. A. 255.

Therefore, as it affirmatively appears that numerous parties to the action, each of whom would be affected by a reversal or modification of the order appealed from, neither joined in the appeal nor were served (with notice thereof, respondents’ motion to dismiss must be sustained.