First National Bank v. Gordon Hardware Co.

Per Curiam. The respondent, plaintiff below, on May 12, 1902, obtained a judgment against the defendant and appellants foreclosing a mortgage upon real property. On August 9, 1902, the appellants gave notice of appeal from the judgment, serving the same upon the plaintiff in the action only, omitting to serve the defendant Gordon Hardware Company. The respondent moves to dismiss the appeal on this ground, bringing here a short record showing the judgment, the notice of appeal, and the return of service thereon, and the bond on appeal. The record of the appellants is not in this court, and the time fixed by statute in which it must be filed has not expired. The appel 128 lants oppose the motion to dismiss, contending that the whole record will show that the answer of the Gordon Hardware Company was in effect a disclaimer of interest; that it afterwards defaulted, and that it had no such interest in the subject-matter of the action as to require a service of the notice of appeal upon it. In the case of In re Murphy's Estate, 26 Wash. 222 (66 Pac. 424), we held that the statute authorizes a resort to the record to determine whether due notice of appeal has been given to all the parties entitled to notice; and in Watson v. Sawyer, 12 Wash. 35 (40 Pac. 413), we held that, when a party to an action has not appeared except for the purpose of disclaiming any interest in the subject-matter of the suit, he is not a necessary party to the appeal, and need not be served with notice thereof. It is apparent, therefore, that, if the respondent’s contention be correct, the appeal ought not to be dismissed. It is said, however, that the appellants ought not to be permitted to show these matters by affidavit, or statements made at the hearing, but that they should have brought the record here, so that the' court could determine for itself, from an inspection of the record, whether or not the motion is well taken. But the statute gives the appellants a certain time within which to file their record in this court, and we do not think the respondent can be permitted to shorten this time by moving to dismiss the appeal. We conclude, therefore, -that the motion is premature under the showing made, and that it must be denied, without prejudice to the right to renew it when the appellants’ record is filed in this court, and it is so ordered.