Traders' Bank v. Bokien

The opinion of the court was delivered by Hoyt, J. This action was commenced by the plaintiff against several defendants. Judgment was duly rendered therein, from which one of the defendants has sought to appeal to this court. The notice of appeal given by said defendant was directed to and served upon the plaintiff and all the defendants excepting Benjamin A. Chilberg. As to this defendant the notice was entirely silent, and there is no proof in the record that it was ever served upon him or his attorney. For the reason that said defendant Chilberg was not made a party to the appeal a motion is made to dismiss the same. It has frequently been held by this court that under the provisions of our statute all the parties who had appeared in the action in the court below must be made parties to the appeal, either by joining therein, or having notice thereof served upon them. It follows that the motion is well taken, unless there is something in the record to take this [778] ' case out of the general rule. It is alleged on the part of the appellant that it is thus taken out of said rule by reason of the fact that the attorney for the appellant was also the attorney for said defendant Chilberg in the court below, and that such being the fact, the knowledge of said attorney of such notice of appeal having been given should be held equivalent to service upon said defendant of a copy of the notice. We are unable to agree with this contention. In our opinion the said defendant Chilberg was in no manner bound by the knowledge thus derived by one who had in the court below acted as his attorney. He was in no sense made a party to the appeal by the simple fact of such notice, and it would have been entirely competent for him to have prosecuted an appeal from the judgment at any time within six months after its rendition, regardless of the fact of the attempted appeal by this appellant. The motion to dismiss must be granted. Dunbar, C. J., and Anders, Scott and Stiles, JJ., concur.