Washington County Abstract Co. v. Stewart

ON PETITION FOR REHEARING.

AILSHIE, J.

Plaintiff has filed its petition for a rehearing in this case and accompanied the same with an extended brief *380 reviewing the decisions of this court and those from the courts of California on the question as to when the writ of certiorari will be issued. It is hot the practice to consider petitions for rehearing in original proceedings in this court, but owing to the peculiar position taken in this case we have concluded to pass upon this application. The position taken by plaintiff in this petition seems to greatly simplify the matter presented for our consideration. The application for a writ in the first instance, as stated in the original opinion, seems to have been made upon the grounds that the plaintiff was not a party to the proceeding in the district court and the opinion of this court was announced on that theory. It is now contended that, although the plaintiff was not a party to the action or proceeding in which the judgment was entered in the trial court, nevertheless “the court, by rendering and entering judgment against it, has made it a party to the matter in controversy." And in closing the brief accompanying this petition for rehearing, counsel says“In other words, it has never been a party to said action until the district judge, without warrant or authority, arbitrarily rendered a judgment against it.” Counsel seems to urge that the plaintiff has been prejudiced in its substantial rights hy reason of the entry of the judgment in the lower court affecting its property rights without giving it notice or making it a party to the action or proceeding. If counsel takes the right view of the nature and effect of the judgment of which he complains, then he must be mistaken as to the law of the case when he argues that he has “no plain, speedy or adequate remedy at law.” Under section 4802, Revised Statutes, it i? provided that “any party aggrieved may appeal,” and according to the 'position taken by counsel, the plaintiff has opened to it a speedy and adequate remedy by appeal, and in such case the writ here prayed for would not issue. No contention is made that the defendant judge did not have jurisdiction of the subject matter, and the only and sole point seems to be that the plaintiff was not .made a party to the action in the lower court and was not brought into court by any order or process. If the .cpnpfi, entered .a judgment which deprives the plaintiff. here of anjr p^ its.property rights, then it must be a “party aggrieved” *381 within the meaning of the statute. It is not necessary for a person or corporation to be named as plaintiff or defendant or intervener in the title to an action or in the title to a judgment entered therein in order to become a party to the action as contemplated by section 4802, supra. This is not a new question in this state. In State v. Eves, 6 Idaho, 144 , 53 Pac. 543 , it was held that in a foreclosure proceeding between private parties where the trial judge neglected to enter a judgment in favor of the state on a usurious contract under the- provisions of section 1266, Revised Statutes, that the state, although not named in the title of the action, nor the body of the judgment, nor in any manner, was, nevertheless, a “party aggrieved,” and was entitled to appeal from such judgment. In that ease Mr. Chief Justice Sullivan cited Adams v. Woods, 8 Cal. 306 , and People v. Pfeiffer, 59 Cal. 89 , with approval. In Adams v. Woods, Mr. Justice Burnett, in considering who was the “party aggrieved” within the meaning of the California statute, said: ■“As to the question who is the party aggrieved, the test found in the note already quoted from Saunders seems to be' the most clear and simple that could be conceived. Would the party have had the thing if the erroneous judgment had not been given? If the answer be aye, then the person is the ‘party aggrieved.5 55 'This ease has been cited with approval by the California court In Estate of Boland, 55 Cal. 312 ; People v. Pfeiffer, 59 Cal. 91 ; Goldtree v. Thompson, 83 Cal. 422 , 23 Pac. 383 . It has also been cited with approval in Peavy v. Goss, 90 Tex. 93 , 37 S. W. 317 , where the supreme court of Texas said that an aggrieved party is “any person having an interest recognized by law in the subject matter of the judgment which he considers injuriously affected by the action of the court.”

For the foregoing reasons the petition for rehearing will be denied, and it is so ordered.

Sullivan, C. J., and Stockslager, J., concur.