THOMAS CARSTENS et al., Appellants,
vs.
SAMUEL D. GUSTIN et al., Respondents
No. 2728
SUPREME COURT OF WASHINGTON
18 Wash. 90, 50 P. 933
October 30, 1897, Decided
Appeal from Superior Court, King County. -- Hon. E. D. BENSON,
Judge.
APPEAL -- JOINDER OF PARTIES -- SURETIES UPON BOND IN ACTION OF
CLAIM AND DELIVERY.
Where third parties have obtained possession of personal property
levied on by the sheriff by giving a forthcoming bond therefor,
and, in an action to try the right of title to the property,
judgment has gone against such claimants and their sureties upon
the bond, on appeal from such judgment the sureties should either
be made parties appellant or notice of appeal served upon them,
under the provisions of the statute (Laws 1893, p. 120, § 4, Bal.
Code, § 6503), that notice of appeal shall be served upon all
parties to an action who do not join in the appeal.
The fact that the sureties are named in the body of the notice of
appeal as appealing from the judgment is not a sufficient
compliance with the requirements of the statute, when the notice
is not signed by the sureties nor by their attorney.
In such an action of claim and delivery, while the sureties are
necessarily parties to the action, they are not plaintiffs, as
their principals are, and a notice given by the attorneys of
plaintiffs is not binding on the sureties.
Humphries, Humphrey & Edsen, for appellants:
John G. Barnes, for respondents:
DUNBAR, J. SCOTT, C.J., and ANDERS, GORDON and REAVIS, JJ.,
concur. DUNBAR
{*92} A sufficient statement of this case is to the effect that
the judgment creditors of Thomas Jose, Alonzo Jose, Bernard
Lynch, Elizabeth Lynch, Frederick Scheuchzer and Adella
Scheuchzer, his wife, caused an execution to be issued out of the
superior court of King county, and placed in the hands of the
sheriff of said county, who, by virtue thereof, levied upon
certain saw-logs in said county as the property of one of the
judgment debtors, viz., Thomas Jose. Before the sale of the logs,
appellants herein, Thomas Carstens and Ernest Carstens,
proceeding in accordance with the provisions contained in sec.
491 et seq. of 2 Hill's Code (Bal. Code, §§ 5262-5266), filed
with said sheriff an affidavit of ownership and right to
possession of the said logs levied upon, giving the bond as
required by statute. The sureties in said bond were Samuel Cahn
and Henry G. Stoelting. On the trial of the case the court found
the issues against Carstens Brothers, claimants, and entered
judgment in favor of Samuel D. Gustin et al., and against Thomas
Carstens, Ernest Carstens and the sureties, Samuel Cahn and Henry
G. Stoelting, and each of them, for the sum of $1,200, the value
of the logs, the logs having been delivered to the claimants,
Thomas Carstens and Ernest Carstens. Thereafter a notice of
appeal was served upon the attorney for Samuel D. Gustin et al.,
the important part of which notice was as follows:
"You and each of you are hereby notified that the plaintiffs,
Thomas Carstens and Ernest Carstens, and Samuel Cahn and Henry G.
Stoelting, their sureties, do hereby appeal {*93} to the supreme
court of the state of Washington from the judgment rendered
herein in favor of the defendants and against the plaintiffs
Thomas Carstens and Ernest Carstens and Samuel Cahn and Henry G.
Stoelting, their sureties. And they appeal from each and every
part of said judgment and from the whole thereof, which is the
only judgment against them in said cause, and was rendered on the
6th day of July, 1897, in the above entitled court. (Signed.)
Humphries, Humphrey & Edsen, Attorneys for Plaintiffs."
No other notice of appeal was given or served or filed by any
person or party, and the notice given was not served upon any one
other than the attorney of Samuel D. Gustin et al., the
respondents herein named.
The respondents move to dismiss the appeal of the appellants
herein for several reasons, but the only one which we consider it
necessary to discuss is the reason that the sureties against whom
the judgment was rendered were not served with notice of the
appeal and did not join in the appeal. It is contended by the
appellants that, inasmuch as the names of the sureties Cahn and
Stoelting appeared in the body of the notice, that was sufficient
without their signing the same, the notice having been signed
simply "Humphries, Humphrey & Edsen, Attorneys for Plaintiffs."
But we do not think that the mere mention of a party's name upon
a bond or other legal instrument in the body of the instrument
has any force or effect whatever. It certainly could not bind
parties who did not sign the instrument or execute it after it
had been prepared.
The main contention, however, of the appellants is that the
sureties were bound by the action of their principals in the
case. Under our statute the sureties undoubtedly have a right to
appeal, and that right cannot be taken away or limited in any
manner by the action of the appellants. It is also the right of
the respondents to have all parties in {*94} interest join in
one appeal so that they may not be called upon to litigate one
suit in two actions or two different appeals. The statute
provides that parties who appear in the action must either be
made parties to the appellate proceedings or given notice of the
same. That the sureties in this case appeared in the action is
beyond question, although they are technically neither parties
plaintiff nor defendant; but they appeared by executing the bond,
and it was only by reason of such appearance that the court had
jurisdiction to enter judgment against them.
The principles involved in this case were decided by this court
in Cline v. Mitchell, 1 Wash. 24 (23 P. 1013), where it was
decided that the sureties, being proper parties to the judgment
in the district court, should be made parties to the writ of
error in the supreme court, or if they did not desire to become
plaintiffs in error, notice of appeal should be served upon them.
It is conceded by the appellants that this case would fall within
the rule laid down in the case just cited, if the statutes were
alike. But it is claimed that the statute of 1893 supersedes the
statute which was in existence at the time the judgment in that
case was rendered; that section 5, on page 121 of the Laws of
1893 (Bal. Code, § 6504), establishes the rule which is now in
existence. Section 5 simply provides that
"All parties whose interests are similarly affected by any
judgment or order appealed from may join in the notice of appeal
whether it be given at the time when such judgment or order is
rendered or made, or subsequently; and any such party who has not
joined in the notice may, at any time, within ten days after the
notice is given or served, serve an independent notice of like
appeal, or join in the appeal already taken by filing with the
clerk of the superior court a statement that he joins therein or
in some part thereof, specifying in what part. Any such party who
does not so join shall not derive any benefit from the appeal
unless {*95} from the necessity of the case; nor can he
independently appeal from any judgment or order already appealed
from, more than ten days after service upon him of written notice
of the former appeal, unless such former appeal be afterwards
dismissed."
This provision of the statute has no bearing that we can see upon
the point in issue. It is simply an additional provision
governing parties who have been served with notice.
But the contention in this case is that no notice has been served
upon the sureties to the bond. An examination of the statute
satisfies us that its provisions require the service of the
notice upon the sureties, where they did not join in the appeal,
and that all the requirements of the statute in that regard which
were in existence at the time that the case of Cline v. Mitchell
was decided are existing provisions of the statute now.
The case of Estis v. Trabue, 128 U.S. 225 (9 Sup. Ct. 58),
decided by the supreme court of the United States, is exactly in
point. There it was decided that where the judgment below was a
money judgment against the claimants and their two sureties in a
bond, naming them, jointly, and where the sureties do not join in
the writ of error and there is no proper summons and severance,
the defect is a substantial one which the court cannot amend, and
by reason of which it has no jurisdiction to try the case, and
that it will of its own motion dismiss the case, without awaiting
the action of a party.
The motion will prevail, and the appeal will be dismissed.
DISPOSITION
Appeal dismissed.
----------