60 P. 772 | Cal. | 1900
Motion to dismiss the appeal. After the will of the above-named decedent had been admitted to probate, certain of his heirs filed a petition for the revocation of its probate. This petition was answered on behalf of three executors by their attorneys, Platt Bayne and H.A. Powell — one executor not appearing to the citation therein; and by the devisees and legatees under the will by their attorney, Edwin Swinford. Upon a trial of the issues made by these answers judgment was rendered against the petitioners, and their motion for a new trial was afterward denied. From this order the present appeal has been taken.
The notice of appeal is directed "To Messers. Platt Bayne, attorneys for executor, Edwin Swinford, attorney for legatees and devisees, and the clerk of said court." It was filed with the clerk and served on Mr. Platt of the firm of Platt Bayne. An admission of its service was made on Mr. Swinford, and also by the nonappearing executor.
The executors for whom Messrs. Platt Bayne appeared have moved to dismiss the appeal on the ground that the notice of appeal is not addressed to any of the executors of said will, or to any of the legatees or devisees under the will, and on the further ground that the notice of appeal is addressed to Messrs. Platt Bayne, attorneys for executor, without saying for which executor.
Section 940 of the Code of Civil Procedure provides that: "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 specified part thereof, and serving a similar notice on the adverse party or his attorney." There is no requirement herein that the notice shall be "addressed" to the persons who constitute the "adverse party," and the provision that the notice shall be *244
served upon "the adverse party or his attorney" is to be read in connection with section
Hibernia Sav. etc. Soc. v. Lewis,
The sufficiency of the notice is not impaired by being directed to Platt Bayne, attorneys for "executor," instead of "executors." This was evidently a mere mistake of the scrivener, and could not by any possibility have been misleading. *245
Under section
The motion is denied.
Garoutte, J., and Van Dyke, J., concurred.