Nelson Bennett Co. v. Twin Falls Land & Water Co.

STEWART, J. The respondent moves to dismiss the appeal herein npon the ground that notice of appeal was not served upon Ryberg & Carleson, defendants named in the complaint. Revised Statutes, section 4808, requires that a notice of appeal shall be served upon the “adverse party” or his attorney. If Ryberg & Carleson were adverse parties within the meaning of this statute, then the appeal should be dismissed, as it is admitted a notice of appeal was not served upon them. “Adverse parties upon whom notice of appeal must be served are such parties as a reversal of judgment would affect.” (Aulbach v. Dahler, 4 Idaho, 522, 43 Pac. 192; Titiman v. Alamance Min. Co., 9 Idaho, 240, 74 Pac. 529.) The words “would affect,” as used in these two decisions, mean “adversely affect.” The statute intends that a notice of appeal should be served upon all parties who have an interest in conflict with a reversal of the judgment, or whose rights would be adversely affected by a reversal of such judgment. (Hayne on New Trial and Appeal, sec. 210; Foley v. Bullard, 97 Cal. 516, 32 Pac. 574; United States v. Crooks, 116 Cal. 43, 47 Pac. 870; Elliott v. Superior Court, 144 Cal. 501, 103 Am. St. Rep. 102, 77 Pac. 1109; 2 Spelling on New Trial and Appellate Practice, pp. 1143-1146; 1 Words and Phrases, p. 224; The Victorian, 24 Or. 121, 41 Am. St. Rep. 838, 32 Pac. 1040.) Where default is entered and the rights of the defendant cannot be prejudicially affected by further proceedings in the case, he is not entitled to any notice of such further proceedings. (23 Cyc. 754.) Looking into the record for the purpose of determining the question as to whether or not it affirmatively appears that Ryberg & Carleson were adverse parties within the meaning of the statute, or would be prejudicially affected by a reversal, we find that Nelson Bennett Company commenced an — 772 — action against the Twin Falls Land and Water Company, a corporation, Alexander Toponee and Ryberg & Carleson, and Walter G. Filer and Martin B. DeLong, trustees, demanding judgment against the defendant Twin Falls Land and Water Company for $185,705.62, and interest and attorney fees and costs, and for a decree of court that plaintiff have a lien upon the canal of said defendant described in the complaint, and that said property may be sold under the decree of the court to satisfy said lien and judgment, and that all liens against said property be litigated and determined in this action; that Walter G. Filer and Martin B. DeLong, trustees, be decreed to have no right or claim in or to said property. The only allegations in this complaint as to the defendants Ryberg & Carleson are found in paragraph 20 of the complaint, as follows: £ ‘ That the defendants, Charles Ryberg and Gus Carleson, as Ryberg & Carleson, were likewise subcontractors under this plaintiff, and performed labor and furnished materials in the building of a certain portion of said canal; and as such they did heretofore and on September 24, 1904, file a lien with the county recorder of said Cassia county, Idaho, claiming the, sum of $5,856.33 due them for work, and plaintiff alleges in respect thereto that said work was performed within the distance and upon that portion of the canal covered by this plaintiff’s lien and described in this complaint, and is included herein, and that any amount which may be found due said Ryberg & Carleson upon their said lien is included in the amount due and owing this plaintiff, as principal contractor, and can and should be litigated and determined herein; that whatever amounts are found due and payable said Ryberg & Carleson should be satisfied out of the property included in and covered by this plaintiff’s lien; that plaintiff has paid to said defendants Ryberg & Carleson all amounts by it, the said plaintiff, received from the defendant Twin Falls Land & Water Company on account of and allowed for said work of Ryberg & Carleson under the contract of employment between said Ryberg & Carleson and this plaintiff; and whatever amount is found to be due upon the lien and claim of said Ryberg & — 773 — Carleson should be deducted from the amount herein found due plaintiff, and decreed and distributed to said Byberg & Carleson in this action.” The Twin Falls Land and Water Company answered in this action and with reference to the allegations set forth against Byberg & Carleson, admitted that Byberg & Carleson were subcontractors under Nelson Bennett Company in the performance of certain work, but whether they were subcontractors under the work mentioned in the complaint and answer in this action, upon which the lien of Nelson Bennett Company was founded, they have no knowledge and therefore deny. They further admit that Byberg & Carleson filed a lien against the property and that they are now claiming and demanding payment of the sum of $5,856.33 from the defendants, alleging such amount is due from Nelson Bennett Company on account of work and labor performed, but as to the lien, they have no knowledge, neither do they know whether the plaintiff paid Byberg & Carleson, and therefore they deny every allegation in respect to Byberg & Carleson made by Nelson Bennett Company in its complaint. Alexander Toponee filed a cross-complaint in this action but does not mention, in any way, the names of Byberg & Carleson. The cause was tried and the court made findings of fact and conclusions of law in which the only reference to Byberg & Carleson is found at folio 536 of the transcript, as follows: “Said Nelson Bennett Co. being an original contractor, and the said Alexander Toponee a subcontractor, and thereupon the hearing and trial of the above consolidated causes was commenced January 23rd, 1906, and had before the court without a jury, at which trial plaintiff Nelson Bennett Co. appeared by its attorneys, Marshall K. Snell, Bertha M. Snell and H. H. Henderson, and plaintiff Alexander Toponee appeared by his attorneys, Henderson & McMillan, and the defendants Byberg & Carleson failed to appear and were in default.” It may be stated, however, in this connection, that there is on file a written appearance on the part of Byberg & Carle — 774 — son by their attorney, but that such written appearance is the only paper filed in said cause by said Ryberg & Carleson. Again, at folio 589, in its twenty-third finding, the court finds: “The court finds that the defendants Ryberg & Carleson, subcontractors under said Nelson Bennett Co., failed to appear herein or to “prosecute their lien and are in default. ’ ’ Again, at folio 610, in conclusion of law No. 5, the court finds that the defendants Ryberg & Carleson are in default. ’ ’ In the decree the names of Ryberg & Carleson were not in any way mentioned. Thus it will be seen that the pleadings do not put in issue any claim of Ryberg & Carleson. They do not appear in the action except by a general appearance. They failed to answer or file a cross-complaint, setting up any claim of lien or asking for any judgment. The court did not find that there was any sum due them; did not find that they had filed or were entitled to any lien upon said property, and made no finding whatever giving them any affirmative relief against the plaintiff or any of their codefendants. The court did not enter any decree against them in any way whatever; did not adjudge any rights in their favor or against' them. So it will be seen that so far as the record in this case is concerned, Ryberg & Carleson, after the allegations in the complaint, were dismissed from further consideration in said cause; that the only reference to them thereafter was to the effect that they had made default and failed to prosecute their lien or any claim. By the judgment and findings, therefore, they were given nothing. They had no interest whatever in the judgment. A reversal of the judgment could not possibly have given them any less. They could not possibly have been prejudicially affected, because they had nothing by the judgment or decree and they could not have been given less by any future judgment that might have been rendered upon a retrial,. even had the cause been reversed. They have no interests in the case which are adverse to, or in conflict with those of the appellant. They have no interest in sustaining the decree because the decree gives them nothing. They — 775 — would not lose anything even though the appellant should prevail on appeal. They were not interested in sustaining the judgment from which the appeal was taken. They are not adverse parties within the meaning of the statute, and consequently are not entitled to notice of appeal. It is contended, however, that inasmuch as the evidence of Ryberg & Carleson was used to prove the claim of Nelson Bennett Company against the Twin Falls Land and Water Company, and as the claim of Nelson Bennett Company covered the work done by Ryberg & Carleson, and as Nelson Bennett Company recovered in the action, they thereby recovered also the amount claimed by Ryberg & Carleson and for that reason they were interested in the judgment. Ryberg & Carleson, however, are making no claim against Nelson Bennett Company. The court did not find that Nelson Bennett Company were indebted to Ryberg & Carleson in any sum. The contractual relations between Ryberg & Carleson and Nelson Bennett Company were not necessarily involved in this suit. In an action to recover by Nelson Bennett Company against the Twin Falls Company, Ryberg & Carleson were not necessary or proper parties except by reason of the fact that a lien was claimed upon the property of the Twin Falls Land and Water Company. Had Nelson Bennett Company sued Twin Falls Company upon the contract alone, without claiming any lien, Ryberg & Carleson would not have been necessary or proper parties. Inasmuch as they made no claim of lien in this action, and the court did not find they had any lien, and did not find that there was any sum due them from Nelson Bennett Company, and did not adjudge that any part of the money realized under the judgment be distributed to them, they had no interest whatever in the judgment, and it was immaterial to them what further proceedings were taken on the part of the judgment debtor. They could not secure in any future proceeding in said case any less right, or any less interest than was given them by the judgment entered in said cause from which the appeal, was taken. They would be in no way prejudicially affected by a reversal of said judgment. — 776 — The motion, therefore, to dismiss the appeal will be overruled. Ailshie, C. J., concurs. Sullivan, J., dissents.