Green v. Berge

Temple C. This appeal is from a portion of the judgment upon the judgment-roll.

The action was brought to recover damages for excavating upon a lot, adjoining plaintiff’s lot, so negligently that the ground constituting a portion of plaintiff’s lot fell into the excavation of its own weight.

Berge was the owner of the lot upon which the excavating was done, and Buckman performed the work under a contract.

The case was tried without a jury, and, among other facts, the court found that on the 14th of May, 1891, Berge entered into a contract with Buckman in writing, whereby for a stipulated price Buckman agreed to grade his lot. That in the contract nothing was said in regard to the duty of supporting the bank towards plaintiff’s lot. That Buckman performed the work to the satisfaction of Berge, and in all respects in a careful, skillful, and workmanlike manner.

That the work was completed on the fourteenth day of August, 1891, and on that day was accepted b}r Berge, who then gave Buckman a writing, in which he stated that the work was done to his satisfaction.

That Berge did not, after the completion of the work, provide for any lateral support to plaintiff’s land, which by the excavation had been deprived of its natural support.

That in the month of December a great part of the earth of plaintiff’s lot, solely by its own weight and by reason of its said lack of lateral support, gave way, and fell into the excavation, to the injury of plaintiff in the sum of one thousand dollars.

Thereupon, the court gave judgment in favor of plaintiff against Berge for one thousand dollars, but also ordered judgment in favor of Buckman against plaintiff for his costs.

Plaintiff appeals from that part of the judgment [56]which is in favor of Buckman, and how contends that upon the findings she is entitled to a joint judgment against both defendants for the amount of damage found by the court.

1. Respondent makes a preliminary objection to the jurisdiction of this court to entertain the appeal, on the ground that the notice of appeal was not served on the codefendant of appellant.

“An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered, a notice stating the appeal from the same or some specific part thereof, and serving a similar notice on the adverse party or his attorney.” Is appellant’s codefendant an adverse party? The appeal cannot result in a modification of the judgment against him. If the appeal be successful, the only possible result would be either that a new trial would be awarded as to the appellant, or a joint judgment would -be entered against both defendants in lieu of the present judgment against Berge. This would in no way affect the liability of Berge upon the judgment, though it might give him the advantage of a codefendant. This is not an adverse interest.