Allen v. Garner

FRICK, J. This action was commenced by the respondent, Henry H. Allen, to recover upon a promissory note for $2,000, of which W. F. Gamer and the appellants, O. D., T. H., and Alma Merrill, were makers. A default was entered against the defendant Garner in August, 1911, upon which judgment was finally entered against him for said sum of $2,000 and accrued interest on the 28th day of August, 1913. The appellants, O. D., T. H., and Alma Merrill, filed an answer, [41] denying liability npon tbe note. A trial resulted in a judgment in favor of Allen and against tbe Merrills, as well as against Garner, tbe judgment against tbe Merrills being entered, however, on tbe 28th day of February, 1913. Tbe Merrills filed a motion for a new trial, wbicb was overruled on tbe 8th day of July, 1913, and they alone appeal from tbe judgment. Notice of appeal was served upon Allen on tbe 31st day of December, 1913, or a few days before tbe six months within which an appeal could be taken under our statute (Comp. Laws 1907, Section 3301) bad expired. W. F. Gamer, although a joint maker of tbe note in suit and a party to tbe action, was nevertheless not made a party to this appeal, and was not served with notice thereof. Respondent, Allen, has interposed a motion to dismiss the appeal upon the ground that this court is without jurisdiction to hear it, for the reason that W. F. Garner, a party to the action, is not made a party to the appeal. • 1 We need not pause here to again discuss the question of whether W. F. Garner, whn was a joint maker of the note upon which judgment was rendered, is a necessary party to this appeal for the reason that he is so is set-tied by this court in the case of Griffin v. Southern Pac. Co., 31 Utah 296; 87 Pac. 1091, and eases there cited. In that case the prior cases in this court upon the question, together with the cases from other jurisdictions where similar statutes are in force, are collated by the present Chief Justice. In view, therefore, that a necessary party was omitted from the appeal and no notice was served upon him, the question is, Is this court without jurisdiction to hear and determine the appeal? Counsel for appellants insist that the rule laid down in Griffin v. Sotithern Pac. Co., supra, does not apply here because they, on the hearing of this case, to-wit: on the 29th day of May, 1914, produced a waiver of notice of appeal by Mr. Garner, in which waiver he also asks leave to enter an appearance in the ease. Respondent’s counsel objected to the filing of the waiver of notice of appeal and the entry of appearance by Mr. Garner, and the question arises, What effect, if any, can be given to the waiver of notice and offer of appearance by Mr. Garner? [42] It will be observed tbat no waiver of notice of appeal was filed and no application to enter appearance by Mr. Garner was made until many months after the time for appeal had expired. Counsel for appellants, however, insist that the case of Belleville, etc., Works v. Sanderson, 16 Utah 119; 51 Pac. 150, is decisive of the question in their favor. It is true that in that case a motion to* dismiss the appeal was interposed upon the same ground that one is interposed here, and this court permitted counsel to have the appearance of the omitted party entered in the case, and then proceeded to hear and dispose of the appeal. While the opinion in that case does not disclose the dates-upon which the several orders were made, reference to the printed record filed in the case, however, does show that in that case the judgment appealed from was entered on the 18th day of May, 1897; that the notice of appeal was served and filed on the same day, ánd that the printed abstract was filed in this court on the 16th day of'August, 1897. The opinion in the ease was filed November 6, 1897. It is apparent, therefore, that when the waiver of notice of appeal in Belleville, etc., v. Sander-son, supra, was filed and the appearance of the omitted party was entered in this court in that case, the time for an appeal had not yet expired and hence a valid notice of appeal could still have been served and filed. It would thus have been a useless ceremony to require the service of a notice of appeal within the time within which a voluntary appearance was permissible. The question that confronts us here, however, is, Can parties confer jurisdiction upon this court to hear appeals by waiving notice of appeal or by entering their appearance at any time after the time for an appeal has expired ? If the question is one merely of regularity or jurisdiction over the person, then, of course, we might permit an omitted party to enter his appearance at any time before the case is finally submitted, but if it is jurisdictional in the sense that it affects the power of this court to- hear and determine the appeal, then, as a matter of course, the parties cannot confer jurisdiction by consent. We think the question is jurisdictional in the sense just stated. If it should be held otherwise, the statute which requires that an appeal to [43] this court be taken within six months, and that the time to do so may not be extended by this or any other court, would be effectually repealed. In referring to the question now under consideration the Supreme Court of California, in Williams v. Santa Clara Min. Co., 66 Cal. 194; 5 Pac. 85, uses this pertinent language: “This court has not jurisdiction to hear an appeal from a judgment, unless the appellant shall have served a notice of appeal on all the adverse parties; that is to say, upon all whose rights may be affected by a reversal of the judgment.” Again, in the case of Millikin v. Houghton, 75 Cal. 541; 17 Pac. 641, it is said: “It may be said the objection cannot come from the moving respondents here, as they can suffer no injury by appellant’s failure to notify the other defendants. The answer is the objection goes to the jurisdiction of the court to hear and determine the appeal, and the right to make the objection by any respondent before the court has been often recognized.” This seems to be the trend of all the authorities which emanate from jurisdictions where there is a positive and inflexible time limit within which notice of appeal must be served or a waiver of such notice be filed. We cannot legally hear nor determine an appeal unless it is taken within the time fixed by the statute. If we may not do that where none of the parties to the appeal are timely served with notice of appeal or have waived the notice and service thereof within the time limit, we may not do so if only one or more of the necessary parties to the appeal have not been served or have waived notice of appeal and service thereof within the time within which an appeal may be taken. Counsel for appellants, however, contend that Mr. Garner is a non-resident of this state- and therefore the rule respecting notice and service thereof should not apply as to him. It, of course, requires no argument to show that while non-residents may affect the kind of notice and manner of service, yet it cannot dispense with the necessity of giving notice. If authority be required for this elementary proposition it is to be found in the ease of Lapham v. Bailey, 61 Kan. 861; 60 Pac. 743. [44] We are therefore forced, to tbe conclusion that the motion to dismiss the appeal for the reasons stated should prevail. The appeal is therefore dismissed at .appellants’ costs. McCARTY, C. J., and STRAUP, J., concur.