MARTIN v. ROWLAND

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Docket Number

No. 5308.

Attorney(S)

Fisher Coffin, for Respondents. The fact that notice of appeal has been served on all adverse parties must affirmatively appear from the transcript. ( Doust v. Rocky Mountain Bell Telephone Co., 14 Idaho 677, 95 Pac. 209; Chapman v. Boehm, 27 Idaho 150, 147 P. 289; Cook v. Miller, 30 Idaho 749, 168 P. 911.) "Adverse party" as used in the statute means any party to the record who by reversal or modification of the judgment appealed from would be affected adversely. ( Bannock Nat. Bank v. Automobile Accessories Co., 36 Idaho 527, 212 P. 864; Abel v. Robert Noble Estate, 43 Idaho 391, 252 P. 493.) The notice of appeal must be served upon the adverse party even though he be in default. ( Titiman v. Alamance Min. Co., 9 Idaho 240, 74 P. 529; Diamond Bank v. Van Meter, 18 Idaho 243, 21 Ann. Cas. 1273, 108 P. 1042; Abel v. Robert Noble Estate, supra.) A party against whom a deficiency judgment can be entered under the terms of the judgment from which the appeal is taken is an adverse party. ( Miller v. Wallace, 26 Idaho 373, 143 Pac. 524.) F.W. Byrd, for Appellants, cites no authorities on point decided.

Judges

GIVENS, J.

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CHARLES MARTIN, RICHARD R. CLAPHAM and THEODORE P. KELLOGG, Respondents, v. M. T. ROWLAND and ALEXANDER McLAREN, Appellants, and IDAHO HYDRAULIC CORPORATION et al., Defendants.

GIVENS, J.

Respondents brought action to foreclose labor liens on mining property alleged to belong to the Idaho Hydraulic Corporation. Appellants claimed to own the property. Judgment was awarded respondents, foreclosing their liens on part of the property, that involved in this appeal, and giving them a personal judgment for additional amounts and authorizing a deficiency judgment; also determining that the liens were prior to appellant's ownership. Notice of appeal was not served on the corporation.

If appellants' claim of superior ownership were sustained on reversal or modification (of the judgment as rendered) the respondents' entire judgment would have to be satisfied out of assets of the corporation other than those here involved: thus the corporation would be injured and hence was a party which should have been served even though in default. ( Abel v. Robert Noble Estate, 43 Idaho 391, 252 P. 493.)

The appeal is dismissed.

Costs awarded to respondents.

Budge, C.J., and T. Bailey Lee, Wm. E. Lee and Varian, JJ., concur.

CHARLES MARTIN, RICHARD R. CLAPHAM and THEODORE P. KELLOGG, Respondents, v. M. T. ROWLAND and ALEXANDER McLAREN, Appellants, and IDAHO HYDRAULIC CORPORATION et al., Defendants.

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