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Lewiston National Bank v. Tefft

Lewiston Nat'l Bank v. Tefft, 53 P. 271 (Idaho 1898)
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Court
Idaho Supreme Court · State Highest Courts
Decided
May 9, 1898
Judges
Huston, Quarles, Sullivan
Citations
53 P. 2716 Idaho 1041898 Ida. LEXIS 35
Syllabus
Practice — Nonjoinder of Parties — Adverse Party. — In an appeal by one of two defendants from a judgment and decree of foreclosure, wherein a joint judgment was rendered against both, the defendant not joining in the appeal is an adverse party, and should be served with notice of appeal. (Syllabus by the court.)
Summary
APPEAL from District Court, Idaho County. cites no authorities on the point decided by the court. files no brief.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Huston

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HUSTON, J.

— This is an action to foreclose a mortgage executed by Albert P. Tefft and Carrie M. Tefft. A joint judgment and decree was rendered against both. From this judgment and decree Carrie M. Tefft appeals. There were other parties made defendants, some of whom appeared; others made default.

Two of the defendants, Carrie M. Tefft and Mary E Osborn, join in the appeal. Respondent moves to dismiss the appeal upon the ground that no notice of appeal was served upon Albert P. Tefft, against whom a joint judgment was rendered. Under the rule as given by this court in Lydon v. Godard, 5 Idaho, 607 , 51 Pac. 459 , Albert P. Tefft was an adverse party, and should have been served with notice of appeal. (See Lydon v. Godard, supra, and cases there cited.) Motion allowed, and appeal dismissed, with costs to respondent.

Sullivan, C. J., and Quarles, J., concur.

On Rehearing

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ON REHEARING.

Per CURIAM.

— The petitioner claims that as Tefft has been released from all liability under the judgment of foreclosure, and the deficiency judgment against him had been satisfied, *105 he was no longer interested in the appeal, was not an adverse party, and therefore entitled to service of the notice of appeal. The release of the defendant Tefft from all liability under the judgment of foreclosure as well as the deficiency judgment was based upon the validity of the judgment. If, upon appeal, the judgment of foreclosure was reversed, set aside, or invalidated, the consideration for the release failed, and the plaintiff’s right of action against Tefft was thereby revived, under the provisions of section 4498 of the Revised Statutes of Idaho. (Cantwell v. McPherson, 3 Idaho, 321 , 39 Pac. 102 , and eases there cited.) As stated by this court in Cantwell v. McPherson, supra, there is no difference, under the statutes of Idaho, between a sale under an execution and one upon an order of sale upon foreclosure of mortgage. The reversal or modification of the judgment upon appeal revived the liability of the defendant Tefft upon the original contract. How can it be said, then, that he was not an interested party? Rehearing denied.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1903: 11908: 11910: 11911: 11912: 11915: 11926: 11933: 119032026peak 1903 · 1

Relies on it most ⓘ

  1. Diamond Bank v. Van Meter108 P. 1042 (Idaho 1910)
  2. Titiman v. Alamance Mining Co.74 P. 529 (Idaho 1903)
  3. Doust v. Rocky Mountain Bell Telephone Co.95 P. 209 (Idaho 1908)
  4. Quirk v. Bedal248 P. 447 (Idaho 1926) · Dissent
  5. Sonleitner v. McLaren20 P.2d 1014 (Idaho 1933)
  6. Berlin Machine Works v. Bradford-Kennedy Co.123 P. 637 (Idaho 1912)

Most recent

  1. Sonleitner v. McLaren20 P.2d 1014 (Idaho 1933)
  2. Quirk v. Bedal248 P. 447 (Idaho 1926) · Dissent
  3. Chapman v. Boehm147 P. 289 (Idaho 1915)
  4. Berlin Machine Works v. Bradford-Kennedy Co.123 P. 637 (Idaho 1912)
  5. Weeter Lumber Co. v. Fales118 P. 289 (Idaho 1911)
  6. Diamond Bank v. Van Meter108 P. 1042 (Idaho 1910)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 3

DepthCaseCited by
Lydon v. Godard, 51 P. 459 (Idaho 1897) 9
Cantwell v. McPherson, 29 P. 102 (Idaho 1892) 8
Tibbals v. Iffland, 39 P. 102 (Wash. 1895) 15

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