
    ALLEN v. GARNER et al.
    No. 2605.
    Decided August 8, 1914
    (143 Pac. 228).
    1. Appeal and Error — Parties—Omission op Neoessaby Party— Defect. Where judgment was rendered against ■ several defendants as- joint makers of a note sued on, one o.f such joint makers, though a non-resident, was a necessary party to an appeal by the other defendants, and, no notice having been served on him during the time within which an appeal could be taken, the Supreme Court had no jurisdiction of the appeal, nor could jurisdiction be conferred by the omitted party’s waiver of notice of appeal and prayer for leave to enter an appearance in the case after such time had expired. (Page 41.)
    On Application for Rehearing.
    2. Judgment — Personal Judgment — Validity. Where one of the joint makers of a note, who was a non-resident, had pledged certain stock to secure payment of the note, a judgment against all the makers, based on service by publication on the nonresident, directing that the pledged securities be sold and that the proceeds be applied on the judgment, was not rendered invalid by reason of the fact that it was also personal in form against such non-resident defendant. (Page 44.)
    
      3. Conteibution — Comakbrs of Note. Where persons are adjudged comakers of a note sued on, they are entitled to contribution among themselves. (Page 45.)
    4. Exceptions, Bul of — Presentation-—-Settlement—Time—Extension — Jurisdiction. Where the time fixed for the settlement of a bill of exceptions as extended has once expired, the trial court loses jurisdiction and can no longer grant a further extension of time or settle and allow the bill, except in proceedings for leave to serve a bill of exceptions out of time. (Page 47.)
    Appeal from District Court, First District; Eon. J. D. Call, Judge.
    Action by Henry H. Allen against W. F. Garner and others.
    Judgment for plaintiff. Defendants O. D. Merrill and others appeal.
    DISMISSED.
    
      Bicharás, Hart & Van Dam and Nebelcer, Thatcher & Bowen for appellants.
    
      J. B. Stewart, Leon Fownerbech and Stewart, Stewart & Alexander for respondent.
    
      
      
         Griffin v. Southern Pacific Co., 31 Utah 296; 87 Pac. 1091.
    
    
      
      
         Butter v. Lamson, 29 Utah 439; 82 Pac. 473; Bryant v. Kunkel, 32 Utah 377; 90 Pac. 1079; Insurance Agency v. Investment Co., 35 Utah 542; 101 Pac. 199; Metz v. Jackson, 43 Utah 496; 136 Pac. 784.
    
   FRICK, J.

This action was commenced by the respondent, Henry H. Allen, to recover upon a promissory note for $2,000, of which W. F. Gamer and the appellants, O. D., T. H., and Alma Merrill, were makers. A default was entered against the defendant Garner in August, 1911, upon which judgment was finally entered against him for said sum of $2,000 and accrued interest on the 28th day of August, 1913. The appellants, O. D., T. H., and Alma Merrill, filed an answer, denying liability npon tbe note. A trial resulted in a judgment in favor of Allen and against tbe Merrills, as well as against Garner, tbe judgment against tbe Merrills being entered, however, on tbe 28th day of February, 1913. Tbe Merrills filed a motion for a new trial, wbicb was overruled on tbe 8th day of July, 1913, and they alone appeal from tbe judgment. Notice of appeal was served upon Allen on tbe 31st day of December, 1913, or a few days before tbe six months within which an appeal could be taken under our statute (Comp. Laws 1907, Section 3301) bad expired. W. F. Gamer, although a joint maker of tbe note in suit and a party to tbe action, was nevertheless not made a party to this appeal, and was not served with notice thereof. Respondent, Allen, has interposed a motion to dismiss the appeal upon the ground that this court is without jurisdiction to hear it, for the reason that W. F. Garner, a party to the action, is not made a party to the appeal. •

We need not pause here to again discuss the question of whether W. F. Garner, whn was a joint maker of the note upon which judgment was rendered, is a necessary party to this appeal for the reason that he is so is set-tied by this court in the case of Griffin v. Southern Pac. Co., 31 Utah 296; 87 Pac. 1091, and eases there cited. In that case the prior cases in this court upon the question, together with the cases from other jurisdictions where similar statutes are in force, are collated by the present Chief Justice. In view, therefore, that a necessary party was omitted from the appeal and no notice was served upon him, the question is, Is this court without jurisdiction to hear and determine the appeal? Counsel for appellants insist that the rule laid down in Griffin v. Sotithern Pac. Co., supra, does not apply here because they, on the hearing of this case, to-wit: on the 29th day of May, 1914, produced a waiver of notice of appeal by Mr. Garner, in which waiver he also asks leave to enter an appearance in the ease. Respondent’s counsel objected to the filing of the waiver of notice of appeal and the entry of appearance by Mr. Garner, and the question arises, What effect, if any, can be given to the waiver of notice and offer of appearance by Mr. Garner? It will be observed tbat no waiver of notice of appeal was filed and no application to enter appearance by Mr. Garner was made until many months after the time for appeal had expired. Counsel for appellants, however, insist that the case of Belleville, etc., Works v. Sanderson, 16 Utah 119; 51 Pac. 150, is decisive of the question in their favor. It is true that in that case a motion to* dismiss the appeal was interposed upon the same ground that one is interposed here, and this court permitted counsel to have the appearance of the omitted party entered in the case, and then proceeded to hear and dispose of the appeal. While the opinion in that case does not disclose the dates-upon which the several orders were made, reference to the printed record filed in the case, however, does show that in that case the judgment appealed from was entered on the 18th day of May, 1897; that the notice of appeal was served and filed on the same day, ánd that the printed abstract was filed in this court on the 16th day of'August, 1897. The opinion in the ease was filed November 6, 1897. It is apparent, therefore, that when the waiver of notice of appeal in Belleville, etc., v. Sander-son, supra, was filed and the appearance of the omitted party was entered in this court in that case, the time for an appeal had not yet expired and hence a valid notice of appeal could still have been served and filed. It would thus have been a useless ceremony to require the service of a notice of appeal within the time within which a voluntary appearance was permissible. The question that confronts us here, however, is, Can parties confer jurisdiction upon this court to hear appeals by waiving notice of appeal or by entering their appearance at any time after the time for an appeal has expired ? If the question is one merely of regularity or jurisdiction over the person, then, of course, we might permit an omitted party to enter his appearance at any time before the case is finally submitted, but if it is jurisdictional in the sense that it affects the power of this court to- hear and determine the appeal, then, as a matter of course, the parties cannot confer jurisdiction by consent. We think the question is jurisdictional in the sense just stated. If it should be held otherwise, the statute which requires that an appeal to this court be taken within six months, and that the time to do so may not be extended by this or any other court, would be effectually repealed. In referring to the question now under consideration the Supreme Court of California, in Williams v. Santa Clara Min. Co., 66 Cal. 194; 5 Pac. 85, uses this pertinent language:

“This court has not jurisdiction to hear an appeal from a judgment, unless the appellant shall have served a notice of appeal on all the adverse parties; that is to say, upon all whose rights may be affected by a reversal of the judgment.”

Again, in the case of Millikin v. Houghton, 75 Cal. 541; 17 Pac. 641, it is said:

“It may be said the objection cannot come from the moving respondents here, as they can suffer no injury by appellant’s failure to notify the other defendants. The answer is the objection goes to the jurisdiction of the court to hear and determine the appeal, and the right to make the objection by any respondent before the court has been often recognized.”

This seems to be the trend of all the authorities which emanate from jurisdictions where there is a positive and inflexible time limit within which notice of appeal must be served or a waiver of such notice be filed. We cannot legally hear nor determine an appeal unless it is taken within the time fixed by the statute. If we may not do that where none of the parties to the appeal are timely served with notice of appeal or have waived the notice and service thereof within the time limit, we may not do so if only one or more of the necessary parties to the appeal have not been served or have waived notice of appeal and service thereof within the time within which an appeal may be taken. Counsel for appellants, however, contend that Mr. Garner is a non-resident of this state- and therefore the rule respecting notice and service thereof should not apply as to him. It, of course, requires no argument to show that while non-residents may affect the kind of notice and manner of service, yet it cannot dispense with the necessity of giving notice. If authority be required for this elementary proposition it is to be found in the ease of Lapham v. Bailey, 61 Kan. 861; 60 Pac. 743. We are therefore forced, to tbe conclusion that the motion to dismiss the appeal for the reasons stated should prevail.

The appeal is therefore dismissed at .appellants’ costs.

McCARTY, C. J., and STRAUP, J., concur.

ON APPLICATION POR REHEARING.

FRICK, J.

Counsel for appellants have filed a petition for a rehearing in which they contend that we have erred in sustaining the motion to dismiss the appeal. One ground especially urged is that we erred in holding that W. F. Garner, who was a defendant in the court below, was a necessary party to the appeal. It, among other tilings, is now urged: (1) That Mr. .Garner was not properly served with summons and was not brought into the case in the District Court, and hence that the judgment entered against him is void; and (2) that he is not interested in the judgment appealed from, and hence is not a necessary party nor even a proper party to the appeal. The question that the judgment against Mr. Garner was improperly rendered is raised for the first time on rehearing, but, in view of its jurisdictional nature, we have nevertheless carefully examined into the record of the proceedings had in the court below so far as we may do that in the absence of a bill of exceptions. The record discloses- that Mr. Garner was properly served with summons by publication based upon a sufficient affidavit, and that the court clearly had jurisdiction to enter a judgment that he was a joint maker of the note in suit, that he was indebted for the sum stated in the judgment, and that the stock he had pledged to secure the payment of said note should be sold and the proceeds derived therefrom be applied on such judgment. The fact that the judgment is also> personal in form in no way affects the validity of that portion to which we have referred. Giving appellants, therefore, the benefit of now raising the question without even an assignment to- the effect that the judgment against Mr. Garner is void for the reasons stated, yet their objections, in our judgment, are not well founded, and have no- merit in either fact or law. That contention must therefore fail.

Proceeding now to a consideration of tbe second proposition, we are also of tbe opinion tbat it cannot prevail in tbis case for tbe reasons following. It is manifest that, inasmuch as the defendant Garner and the appellants were adjudged comakers of the note in suit, they are entitled to contribution among themselves. 3 Randolph on Commercial Paper, Section 1426. If, therefore, the judgment against the Merrills, who are co-obligors with Garner upon the note, is reversed, Mr. Garner may alone by held liable for the amount of the note sued on. The fact that there was a separate default judgment entered against Mr. Gamer, and another judgment after a trial was entered against the Mer-rills on the note in no way affects the liability of all the makers or their rights among themselves. Mr. Garner was therefore as much concerned and interested in maintaining the judgment against the Merrills as was the respondent Allen. The difference was one of degree only. The rule that we followed in the opinion, namely, that all parties to an action who may be interested in maintaining or reversing the judgment appealed from are necessary parties to the appeal must therefore prevail. That rule is conceded to be the test in all the eases cited by counsel in support of their petition for a rehearing with possibly one exception, to which we shall refer hereafter. In support of the claim that Mr. Garner was not a necessary party to the appeal counsel have cited the following cases: Snohomish County v. Ruff, 15 Wash. 637; 47 Pac. 35; Home S. & L. Ass’n v. Burton, 20 Wash. 688; 56 Pac. 940; Clarke v. Mohr, 125 Cal. 540; 58 Pac. 176; Peck v. Agnew, 126 Cal. 607; 59 Pac. 125; Merced Bank v. Rosenthal, 99 Cal. 39; 31 Pac. 849; reaffirmed in 33 Pac. 732; Searcy v. Tillman, 75 Ga. 504; Essency v. Essency, 10 Wash. 375; 38 Pac. 1130. In the first ease cited the appeal was from an order sustaining a certain motion made by some of the defendants in the action to strike from the complaint certain allegations applying to them.. In Washington such an order is appealable and the plaintiff appealing made only those defendants parties to the appeal who joined in the motion to strike. The court held that, inasmuch as the other defendants were not affected by the matter stricken from tbe complaint, they were not necessary parties to the appeal. In Home S. & L. Ass’n v. Burton, supra, it does not appear from the opinion whether the omitted parties had any interest whatever either in maintaining or in reversing the judgment. That case, therefore, is without influence here. In the next five cases cited it affirmatively appears that no service of summons was ever made on the parties in question and no judgment, therefore, in their favor or against them was or could have been entered, and therefore it was held they were not necessary parties to the appeals in those cases. The ease of Essency v. Essency, supra, in our judgment goes to the extent of holding that although a party may be interested in having the judgment appealed from maintained, yet he is not a necessary party to the appeal. In that case the plaintiff began an action against three defendants tO' foreclose a lien on farm products. The principal defendant, who* was the owner of the property affected, by the action, made default, and judgment was entered against him, ordering the foreclosure of the lien and a sale of the property. The other two defendants were made parties to the action in the court below, for the reason that they claimed some interest in the property upon which the plaintiff claimed a lien as aforesaid. The court found against the two defendants and entered judgment accordingly. They appealed, but failed to make the defaulting codefendant a party to the appeal. The plaintiff moved to dismiss the appeal for that reason, and the court held that the defaulting codefendant was not a necessary party to the appeal. In our judgment that case is not well decided. We think the defaulting defendant was interested in having the judgment maintained, and hence had an interest in the subject-matter of the appeal. That case, however, is contrary to the general rule, and is also' contrary to the doctrine to which we are committed. Counsel, have also cited the following eases as being contrary to the doctrine followed in the original opinion, namely, Basket v. Hassell, 107 U. S. 602; 2 Sup. Ct. 415; 27 L. Ed. 500; McGaughey Bros. v. Latham, 63 Ga. 67; Nelson, Adm’r, v. Stewart, 63 Ind. 294; Payne v. Raubinek, 82 Iowa 587; 48 N. W. 995; Guaranty Trust, etc., Co. v. Buddington, 23 Fla. 514; 2 South.. 885; Kuhl v. Pierce, 44 Neb. 584; 62 N. W. 1066; Clearcreek Tp. v. Rittiger, 12 Ind. App. 355; 39 N. E. 1052. The doctrine upon which all of the cases last cited rest is stated by the Supreme Court of the United States in Basket v Hassell, sv,pra, thus:

“An appeal will not lie dismissed by reason of the omission of certain persons who were parties to the suit in the court below, if they have no interest in maintaining or reversing the decree.”

This is precisely the doctrine adopted by this court, and which is adhered to in the opinion filed in this case. "We need not pursue the subject further, since it is manifest from the cases cited by counsel that they have no' application to the case at bar, and, further, that the opinion already filed is sound both upon reason and principle. It is but just to counsel to state that they, in citing the foregoing cases, assumed that the whole of the judgment against Mr. Garner was void, and that he had no concern whatever whether it was affirmed or reversed. In that assumption, as we have seen, counsel are in erroir.

There is, however, still another reason why we cannot proceed to a consideration of the merits. In order to review the assignments of error relied on by appellants we must have recourse to the evidence produced and the proceedings had at the trial, all of which should be preserved in a bill of exceptions. Before the ease was argued respondent also interposed a motion to strike the bill of exceptions for the reason that it was not allowed, settled, and filed in time. While we did not deem it necessary to say anything concerning that motion in the opinion filed, yet, in view that counsel now strenuously insist that we should pass upon the merits, we have deemed it proper to say a few words with respect to the motion to strike. It appears that the motion for a new trial was denied on the 8th day of July, 1913. Nothing appears to have been done with respect to preparing the bill of exceptions by appellants until the 17th day of October, 1913, although, under the statute, the time to prepare a bill of exceptions expired on the 7th day of August, 1913, provided the appellants had notice of the decision. Tbe Judge on the 17th day of October, granted appellants “thirty days additional time in which to prepare, file and serve a bill of exceptions. ’ ’ On November 15th following the court granted them “forty-five days additional time in which to prepare, file, and serve, a bill of exception # * * provided time lias not heretofore expired.” On December 26, 1913, they were given “thirty additional days time in which to prepare and serve and file a bill of exceptions.” On February 3, 1914, appellahts were “granted ten days additional time in which to file bill of exceptions.” The bill was finally allowed and settled by the Judge on the 6th day of February, 1914. The foregoing extensions of time are all taken from the original orders which are attached to the bill of exceptions. If, therefore, we again give the appellants the benefit of looking into the record although not properly certified, and assume that the Judge, on the 17th day of October, 1913, had the power to' further extend the statutory time of thirty days, such extension expired on the 16th day of November. On the 15th day of that month the Judge granted a further extension of forty-five days. That extension expired on the 31st day of December, 1913. On the 26th day of that month, however, a further extension of thirty days was given, which expired on the 30th day of January, 1914. When the Judge thus attempted to give another extension of ten days on the 3d day of February, 1914, he was without power to do so, and hence, when the bill of exceptions was finally allowed and settled by the Judge on the 6th day of February, he had lost jurisdiction and was without power to settle and allow the bill. The question of the Judge’s power in that respect has been definitely settled in the following cases: Butter v. Lamson, 29 Utah 439; 82 Pac. 473; Bryant v. Kunlcel, 32 Utah. 377; 90 Pac. 1079; Insurance Agency v. Investment Co., 35 Utah 542; 101 Pac. 699; Metz v. Jackson, 43 Utah 496; 136 Pac. 784. The doctrine is reaffirmed in the case of Tooele Imp. Co. v. Hoffman, 44 Utah 532; 141 Pac. 744, where it is pointed out how the trial eourt may be reinvested with power to allow and settle a bill of exceptions álthough the time may have expired. The foregoing cases are all decisive of the question here presented, and establish tbe doctrine that tbe Judge bad lost jurisdiction to allow and settle tbe bill in question. Tbe allowance and settling of a bill of exceptions is statutory. Tbe procedure pointed out by our statute is exceedingly simple and practical. An extension of time may be obtained without any trouble or expense. Litigants must, however, substantially compiy with the provisions of tbe statute. If they do not and the courts nevertheless act, tbe action may be usurpation pure and simple. In view that tbe time within which the bill of exceptions in 'question should have been allowed and settled had fully expired when the last order of February 3, 1914, was made, the Judge was without power to allow and settle the bill on the 6th day of February, 1914, and hence the motion to strike the bill must prevail.

We remark that the notice of appeal in this case is also clearly defective, if not entirely void. The notice recites that the appeal is “from the judgment made and entered in said court on the 5th day of June, 1913,” etc. The only judgment against appellants which is incorporated into the judgment roll is dated on the 27th day of February, 1913. It is true that an appeal is also taken from an order overruling appellants’ motion for judgment on the special findings of the jury made on the' 23d day of May, 1913, and likewise from the order denying their motion for a new trial dated July 8, 1913. Those two orders are, however, not appealable in this jurisdiction, and the order denying the motion for a new trial is important only because it is that order which makes the judgment final and appeal-able, and because the time within which an appeal may be taken dates from the making of that order. Both these orders, if properly preserved in the record, could, however, have been assigned as error and when so assigned could have been reviewed by this court. The notice of appeal in this ease can be deemed sufficient only in case we entirely disregard the date of the judgment which is named therein and by looking alone to the date of the order denying the motion for a new trial, which order is a part of the judgment roll. It will thus be observed that the reasons why we cannot legally proceed to a consideration of the merits of this case are both serious and numerous.

The other objections urged by appellants in support of their petition for a rehearing have no merit and need no further consideration.

For the reasons stated, nothing could be gained by granting a rehearing in this ease, and the petition is therefore denied.

McCARTY, C. J. and STRAUP, J., concur.  