281 P. 672 | Cal. Ct. App. | 1929
Certiorari to review the action of the Superior Court in dismissing an appeal taken from a judgment rendered in the Justice's Court.
In substance the petition recites that on the twenty-eighth day of July, 1928, the Golden West Credit and Adjustment Company, a corporation, commenced an action in the Justice's Court of the City and County of San Francisco, against J.D. Small and F.L.W. MacDonald, individually and as copartners doing business under the firm name of MacDonald Company, and Arthur A. Goepp and F.J. Fuller, individually and as copartners doing business under the name of Fuller Goepp. Defendants Small, MacDonald and Goepp appeared separately in propria persona and filed their respective denials. Trial was had and judgment was rendered against MacDonald in favor of plaintiff and all other defendants. MacDonald filed his notice of appeal from the judgment and served the same upon the attorney for plaintiff. Motion to dismiss the appeal was filed, upon the ground that the court had no jurisdiction to hear and determine the same for the reason that no notice of the appeal was ever served upon the defendants in whose favor judgment was rendered, it being claimed that they were adverse parties by reason of the character of the judgment rendered and should, therefore, have been served.
[1] The statute requires that notice of appeal must be served upon the adverse party and compliance therewith is necessary to the jurisdiction of the appellate court except in certain special cases, of which this is not one. [2] *425
Broadly stated, an "adverse party" within the meaning of the provisions of the Code of Civil Procedure is defined to be a party to the record whose interest in the subject matter of an 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, and this, irrespective of the question of whether he appears upon the face of the record in the attitude of plaintiff, or defendant, or intervener. (Fearon v. Fodera,
Petitioner's co-defendants having an interest in relation to the subject of the appeal should have been served with notice of the appeal. Not having been served, the Superior Court was without jurisdiction to hear the appeal.
The writ is denied.
Knight, J., and Cashin, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on November 22, 1929, and an application by petitioner to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on December 19, 1929.
Richards, J., and Preston, J., dissented.