In an action to foreclose a mortgage upon real estate, the mortgagors, Robert Rayl and Nora Rayl, were made parties defendant; and under an allegation that one W.R. Brooks claimed an interest in the mortgaged premises, which interest was alleged to be subject and subsequent to plaintiff's lien, said Brooks was also made a party defendant. Defendant Brooks was served with summons but did not appear and suffered default. The defendants Rayl answered the complaint, and filed a cross-complaint against plaintiff to which Brooks was not made a party, and which was answered by plaintiff; and upon issues so made trial was had, resulting in a judgment foreclosing the mortgage for the full amount claimed by plaintiff. The defendants Rayl appeal from the judgment.
Motion is made to dismiss the appeal upon the ground that the undertaking on appeal was prematurely filed. The undertaking was filed on February 7, 1927, on which day notice of appeal and copy thereof were mailed by counsel for appellants to counsel for plaintiff, who on February 9th indorsed their written acceptance of service on the notice and returned it to counsel for appellants. Thereafter, on February 12th, the notice of appeal was served upon the *Page 779 personal representative of defendant Brooks, and upon February 15th was filed with the clerk.
Regardless of the acceptance of service of the notice of appeal by plaintiff on February 9th, it was a proper case for service by mail, and such service being properly made, the service of the notice on plaintiff was complete on February 7th, when the notice, with copy thereof, was deposited in the mail. (C. S., sec. 7199.) The transcript shows only the acceptance of the service on February 9th. The service by mail upon February 7th is shown by affidavit upon this hearing; and such showing in this court may properly be considered upon motion to dismiss. (Farmers Miners' State Bank v. Probst,76 Mont. 284, 246 P. 249; Sutter v. Tisdale, 128 Cal. 180,60 P. 757; Garrett v. Garrett, 31 Cal. App. 173, 159 P. 1050; 2 Cal. Jur. 355, 356.) The only question, therefore, is whether by reason of the failure to serve defendant Brooks on or prior to February 7th the filing of the bond on that day was premature.
C. S., sec. 7153, provides that an appeal is ineffectual for any purpose unless, within five days after service of notice of appeal, an undertaking be filed or a deposit of money made with the clerk as thereinafter provided, unless such undertaking be waived in writing. The holding that the filing of such bond after the judgment appealed from has been rendered, but prior to the service of the notice of appeal, vitiates the appeal, though such bond remains on file at all times thereafter, is a harsh one; but such rule has been established in this state by various decisions beginning with Clark v. Lowenberg, 1 Idaho 654, under a statute similar to C. S., sec. 7153. Prior to that decision it had been held in People v. Hunt, 1 Idaho 371, under a statute providing that an undertaking must be filed within five days after the filing of the notice of appeal, that an undertaking filed prior to the filing of the notice of appeal was prematurely filed, and of no effect. In Healy v. Taylor,37 Idaho 749, 218 P. 190, the decisions on this point were reviewed, and it was held that the statute having for a long time been given *Page 780 a fixed, definite meaning, the former decisions should not be overruled to hold that an undertaking given long prior to the filing and service of the notice of appeal was sufficient. Nor is the rule without reason when considered in connection with C. S., sec. 7154, providing that if any undertaking be insufficient, the respondent may except to the same within twenty days after the filing of the undertaking. It is pointed out in Buffendeau v. Edmondson, 24 Cal. 94, that because a similar statute gave respondent a fixed period after the filing of an undertaking to except to the sureties, the service of notice of appeal must be made at or before the time of filing the undertaking; otherwise, respondent's time to except to the sureties would be shortened, or entirely wiped out.
It is apparent, however, that in this case the defendant Brooks was not a necessary party to the appeal. It is well settled by our decisions that service of notice of appeal need only be made upon adverse parties, and that an adverse party is one who would be prejudicially affected by a modification or reversal of the judgment appealed from. Among these decisions are: Lind v. Lambert, 40 Idaho 569, 236 P. 121; Bannock Nat.Bank v. Automobile Accessories Co., 36 Idaho 527, 212 P. 864;Nelson Bennett Co. v. Twin Falls L. W. Co., 13 Idaho 767, 13 Ann. Cas. 172, 92 P. 980. Plaintiff having recovered judgment for the full amount of its claim, and the plaintiff's lien on the mortgaged premises being declared superior to any interest of the defendant Brooks, there could be no modification of the decree which could be detrimental to the interest, if any, of Brooks. (Boob v. Hall, 107 Cal. 160, 40 P. 117.) Such interest as he has would appear to be common with that of the appellant in seeking a reversal. (Blackman v. Harry (Tex.Civ.App.), 35 S.W. 290.) The appeal was therefore perfected, in so far as the service of notice is concerned, when service was had upon the plaintiff; and a later and unneccessary service of it upon Brooks could not vitiate the filing of the bond, which was effective, if the plaintiff is the only adverse party upon the appeal. *Page 781
It is therefore unnecessary to determine the question raised as to the proper time for filing an undertaking on appeal when there are several adverse parties served with notice of appeal upon different dates.
I recommend that the motion to dismiss the appeal be denied.
The foregoing is approved as the opinion of the court and the motion to dismiss the appeal is denied.
Wm. E. Lee, C.J., and Givens, Taylor and T. Bailey Lee, JJ., concur.