143 P. 710 | Cal. | 1914
Dell M. Higgins was substituted as plaintiff in the above-entitled action by order of the superior court and notice of appeal served on her by the appellant, W.O. Kay. She moves to dismiss the appeal as to herself.
A.E. Higgins, the original plaintiff, brought an action against Kay and others to quiet his title to an undivided one-fourth interest in a certain lot in the city of San Diego. Kay answered, asserting an interest in the land under an executory contract between himself and plaintiff, and also filed a cross-complaint under which he sought specific performance of this executory contract. A general demurrer to the cross-complaint was sustained. On the trial judgment was entered in favor of plaintiff. This was on April 26, 1913. Kay took no steps to appeal under the new or alternative method of appeal, nor any steps to appeal until October 21st following, when a few days before his right to appeal under the old method would have expired he made an ex parte motion or application to the trial court for an order substituting Dell M. Higgins, the moving party herein, as plaintiff in the action *470 in the place of the original plaintiff, A.E. Higgins, and this application the court forthwith granted. This was done without any notice to said Dell M. Higgins of the application for said order. The grounds upon which the motion for such substitution was made and ordered were that the original plaintiff, A.E. Higgins, had died on August 31, 1913, that prior thereto he had conveyed by deed which was of record, all the property involved in the action to said Dell M. Higgins; that the estate of A.E. Higgins had no further interest in the property and that said Dell M. Higgins was the only person interested therein as far as the interest of the original plaintiff was concerned.
After this order of substitution was made, and on the same day it was made, notice of the making thereof was served on said Dell M. Higgins as also a notice of appeal in this action. She now moves to dismiss the appeal on the ground that the order of substitution was void because made without any notice to her of the application therefor; that such notice was a jurisdictional prerequisite to the making of a valid order of substitution. The position of respondent in resisting her motion is that the superior court had authority to make the order without notice to her, or if notice should have been given it was not a jurisdictional essential and failure to do so only rendered the order voidable; that this being true, the remedy of Dell M. Higgins was by motion in the trial court to have the order of substitution set aside or to proceed by direct appeal to have it vacated in this court, and that having failed to seek relief by either of these methods she should not be granted the relief of a dismissal of the appeal which she seeks under the present motion.
It is provided by section
"An action or proceeding does not abate by the death or any disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of the death or any disability of a party, the court, on motion, may allow the action or proceeding to be continued by or against his representative or successor in interest. In case of any other transfer of interest, the action or proceeding may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action or proceeding." *471
It was under this section of the code that the application for substitution was made, and it will be observed that any right of the defendant Kay to apply and have it done under the asserted fact that the original plaintiff had transferred his interest in the subject matter of the litigation is given in the last sentence of the section, which provides that it may be ordered "in case of any other transfer" than the devolution of interest by death. While the application for an order of substitution here is based in a measure upon the death of the original plaintiff, that fact is really a false quantity in the case. The right of the defendant to have the substitution as made could not be based upon that fact, but only upon the alleged fact of the transfer prior thereto, and as far as either the death of or transfer by the original plaintiff is concerned it could not affect the rights of the defendant which would be fully secured if after the one the action continued to be prosecuted in the name of his personal representatives or after the other it was still prosecuted in the name of the original plaintiff. This is clear from the terms of the section itself and is supported by the authorities. (Walker v. Felt,
The case of Campbell v. West,
It follows that as there was no valid substitution of Dell M. Higgins as plaintiff in the action, the service of notice of appeal upon her was of no legal efficacy and the motion to dismiss this appeal as to her is granted.
Henshaw, J., Melvin, J., Sloss, J., and Shaw, J., concurred.