(Download) "Minnie Hector Smith v. Marion E. Grilk" by Supreme Court of North Dakota ~ eBook PDF Kindle ePub Free

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Title: Minnie Hector Smith v. Marion E. Grilk
Author : Supreme Court of North Dakota
Release Date : January 24, 1933
Genre: Law,Books,Professional & Technical,
Pages : * pages
Size : 69 KB

Description

This is an appeal from a judgment in favor of the plaintiff in an action to foreclose a mortgage and is here for trial de novo. The question argued concerns only the rents during the period of redemption. It is the contention of the appellants that the mortgagor is entitled to the rents, while the respondent claims them under an assignment and contends that a receiver was properly appointed for the purpose of collecting rent during the period of redemption. There is a motion by the plaintiff to dismiss the appeal. The basis of the motion is that the notice of appeal was not served upon the defendant, the American Amusement Company, as an adverse party, Comp. Laws, 1913, § 7821. This defendant is hardly more than a nominal party. Its pleading and the record disclose that its interest in the litigation is solely to the end that it may pay the rent to the party legally entitled to the same and thereby be discharged of its admitted obligation. It is in no other respect interested in the foreclosure proceeding. It does not appear that this defendant can be prejudicially affected by any modification of the judgment regarding rents at the instance of the parties who alone are concerned with the right to them. Where the record shows that a party to the judgment has no interest that would be affected by the appeal, such party is not a necessary party to the appeal. See Galveston, H. & N.R. Co. v. House (C.C.A. 5th) 102 F. 112; United States v. Exploration Co. (C.C.A. 8th) 203 F. 387; Germain v. Mason, 12 Wall. 259, 20 L. ed. 392; Williams v. Santa Clara Min. Asso. 66 Cal. 193, 5 P. 85; Thompson v. Ellsworth, 1 Barb. Ch. 624; 2 Hayne, New Tr. Appeal (Rev. ed.) § 210; 2 Cal. Jur., §§ 120-122.