99 Cal. 265 | Cal. | 1893
Motion to dismiss the appeals.
The plaintiff brought this action in 1884, against Thomas Hildreth, for the purpose of dissolving a partnership between them and to procure the sale of certain lands described in the complaint and alleged to be a part of the partnership assets. The other defendants were made parties to the action by reason of their claim to some interest in the lands. In 1891, the defendants, other than Hildreth, moved the court to dismiss the action as against them and as against the lands described in the complaint, and when this motion came on for hearing the defendant Hildreth moved the court for its dismissal, and the two motions were heard together. The court denied Hildreth’s motion and granted the motion of the other defendants, and ordered that the action be dismissed as against the said defendants and also as against and in regard to the lands described in the complaint; and at the same time denied the motion of plaintiff to file an amended and supplemental complaint as against the said defendants, and to introduce certain additional evidence. Judgment was entered in accordance with this order on the twenty-eighth day of December, 1891, and on the fifteenth day of February, 1892, the plaintiff gave notice of his appeal therefrom. January 14,1892, the plaintiff gave notice of his intention to move for. an order vacating and setting aside the foregoing decision of the court dismissing the action, and also to vacate and set aside the decision of the court denying his motions for leave to file an amended and supplemental complaint and to introduce certain evidence at the hearing of the motion to dismiss the cause, and to grant a new trial thereof. May 16, 1892, the court made an order denying these motions, and on the same day the plaintiff gave notice of an appeal from this order denying his motion to vacate the decision dismissing the action, and to vacate the decision denying his motions, and his motion “ for a new trial of said cause upon and as to each of said motions.” These notices of appeal were each directed to and served upon the attorneys for the defend
1. This court has jurisdiction to entertain an appeal only upon a compliance by the appellant with the procedure prescribed by the legislature for taking the appeal. Section 940 of the Code of Civil Procedure requires that the notice of appeal shall be served on the “adverse party.” Unless such service is made this court has no jurisdiction over him, and any order or judgment it might make with reference to the judgment appealed from would be ex parte and could not affect his rights or be binding upon him. The “adverse party” referred to in this section is defined in Senter v. De Bernal, 38 Cal. 640, to be “every party whose interest in the subject-matter of the appeal is adverse to or will be affected by the reversal or modification of the judgment or order from which the appeal has been taken.” In Williams v. Santa Clara Min. Ass’n, 66 Cal. 195, it was said: “This court has not jurisdiction to hear an appeal from a judgment unless the appellant shall have served the 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; or where the appeal is from part of the judgment, by a reversal of the part appealed from.” It was held in that case that when the appeal is from the whole judgment notice need not be served upon all the parties to the action if the modification sought can be effected without affecting the rights of those not served. In In re Castle Dome Min. Co., 79 Cal. 246, the corporation had suffered default, and although it appeared that it would not be affected in any practical manner, however the appeal might be determined, yet it was held to be an “adverse party” inasmuch as the judgment dismissing the action was practically a judgment in its favor and could not be reversed without depriving it of an apparent advantage; and the appeal was dismissed for the reason that no notice thereof
The present action was brought for the purpose of dissolving the partnership between the plaintiff and Hildreth, and determining their respective rights in the “Hildreth rancho.” The ownership of this land is the chief issue presented by the pleadings between the plaintiff and Hildreth, and the plaintiff seeks its sale and a division of the proceeds under the judgment of the court. Hildreth admits the existence of the partnership, but denies that the land forms any portion of its assets, or that the plaintiff has any interest therein. The plaintiff and Hildreth are thus adverse to each other upon one of the main issues in the case. The judgment of the court, dismissing the land from the action, has taken this issue out of the case, and left Hildreth free to make such disposition of the land as he may choose, and to render such disposition free from the effect of any judgment or order that may hereafter be made in the action. The court has thereby lost its jurisdiction over the land for the purposes of this action as fully as if it had never been brought under its jurisdiction. The reversal of this judgment would have the effect to revive the issue of ownership in the land between the plaintiff and Hildreth, and to restore the land to the control of the court in the action, and deprive Hildreth of the free and unrestrained power of alienation which followed the judgment of dismissal. Thus it is clearly for the interest of Hildreth that the judgment dismissing the land from the action should stand, and he is directly Ínteres!ed in any question involving the right of the superior court to determine its ownership, as between him and the plaintiff, and it is very evident that this court cannot render a judgment that will have this effect unless Hildreth is before it.
Whether a party to the action is “adverse” to the appellant must be determined by their relative position on the record and
2. Section 963 of the Code of Civil Procedure enumerates the orders from which an appeal can be taken, and when an appeal can be taken from an order, a subsequent order denying a motion to vacate that order is not appealable. (Holmes v. McCleary, 63 Cal. 497; California S. R. R. Co. v. Southern Pacific R. R. Co., 65 Cal. 295; Reay v. Butler, 69 Cal. 572; Tripp v. Santa Rosa St. R. R. Co., 69 Cal. 631; Eureka & T. R. R. Co. v. McGrath, 74 Cal. 49; Larkin v, Larkin, 76 Cal. 323; Goyhinech v. Goyhinech, 80 Cal. 409.) An exception to this rule is made when the original order was irregularly issued. (People v. Grant, 45 Cal. 97; San Jose v. Fulton, 45 Cal. 319.) If the original order was in itself not appealable, a fortiori, an order refusing to vacate it, is not appealable. (Estate of Keane, 56 Cal. 409.) As neither of the orders dismissing the action, denying leave to file an amended and supplemental complaint, and denying the motion to introduce certain evidence, is appealable under the provisions of section 963, it follows that the orders denying the plaintiff’s motion to vacate those orders are not appealable.
3. Upon a motion to dismiss an appeal from an order, on the ground that it is not an appealable order, the order itself
It follows that inasmuch as the notice of appeal from the judgment was not served upon the defendant Hildreth, and as the orders appealed from are not appealable, the several appeals must be dismissed, and it is so ordered. _Remittitur stayed thirty days.
Garoutte, J., and De Haven, J., concurred.
Hearing in Bank denied.
Beatty, C. J., dissented from the order denying a hearing in Bank.