Mallett v. Velie Motor Car Co.

FRICK, J. The plaintiff, ‘Alma F. Mallett, brought this action against the Velie Motor Car Company, a corporation, Velie Motor Vehicle Company, a corporation, Max Olsen and Thomas E. Kelly. A trial to a jury resulted in a verdict in favor of the plaintiff and against all of the defendants. The defendant Kelly had, however, not been served with summons, and the District Court of Salt Lake County, wherein the action was brought, eliminated him from the verdict and ease. A joint judgment was thereupon entered upon the verdict against the [568] other three defendants, but, on motion for a new trial, the ■action was dismissed as against the defendant Olsen, and thus he was likewise eliminated from the case. The joint judgment against the two corporations was, however, confirmed, on motion for a new trial, and the defendant Velie Motor Vehicle Company alone appeals therefrom. In taking the appeal the appellant served the plaintiff with notice of appeal, but failed to serve such notice upon its codefendant, the Velie Motor Car Company. The judgment being a joint judgment against both corporations, plaintiff’s counsel insist that, under the rule laid down in Griffin v. Southern Pac. Co., 31 Utah 296, 87 Pac. 1091, and cases there cited, Allen v. Garner et al., 45 Utah 39, 143 Pac. 228; Williams v. Santa Clara Min. Co., 66 Cal. 195, 5 Pac. 85, and Millikin v. Houghton, 75 Cal. 539, 17 Pac. 641, we have no jurisdiction of the appeal, and are without authority to dispose of it upon the merits. In view of the authorities just referred to counsel’s contention seems to be well founded. Here, as in the eases cited, a joint judgment was entered against both defendants. In view of that fact it was necessary, in order to confer jurisdiction upon this court, for the appellant to serve its notice of appeal upon its code-fendant, or to obtain a waiver of service of such notice from it; and the failure to comply with either one of those requirements is fatal to this appeal. The objection of plaintiff’s counsel must therefore be sustained, and the appeal dismissed. Such is the order. Costs to respondent. STRAUP, C. J., and MeCARTY, J., concur.