Balkins v. Norrby

California Court of Appeal Nov 19, 1943 No. Civ. 14262Published

Before: Bishop

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Holding. The court held that the appeal was untimely as to the interlocutory decree and prior proceedings, but valid as to the order of March 22, 1943, which was sufficiently identified in the notice of appeal.

Issues

Whether the notice of appeal is ineffective for failing to name a party as respondent.
Whether the appeal is timely regarding the interlocutory decree and subsequent orders.
Whether the notice of appeal sufficiently identifies the orders appealed from to avoid dismissal.

Disposition. Dismissed in part; denied in part.

Quotations verified verbatim against the opinion

“there is no provision of law requiring the notice of appeal to be addressed to the opposite party.”

“notices of appeal are liberally construed to preserve the right of review unless it appears that the respondent has been misled by the misdescription.”

“The motion to affirm, or to dismiss the appeal from, the order of March 22, 1943, is denied; the appeals from the interlocutory judgment and from the other proceedings or orders are dismissed.”

BISHOP, J. pro tem.

The questions now to be answered in this case arise out of plaintiffs’ motion to dismiss the appeal of the defendant Alvin L. Norrby, appearing as executor of the estate of Mary Dargit Trowbridge, or to affirm the matters appealed from. The action is one to partition a parcel of land. The complaint alleges that the plaintiff is the owner of a one-third interest in the lot and house, which constitutes the parcel, and that the estate of Mary Dargit Trowbridge has a two-thirds interest in the property, subject to a mortgage of the two-thirds interest to Los Angeles County. The complaint further alleges a tax sale of the property to the defendant Cleon E. Balkins, but claims that the sale was defective, a claim disputed by Balkins in his answer.

An interlocutory decree was entered, providing for the sale of the property by a referee appointed for the purpose, and for the distribution of the proceeds of the sale as follows: (1) pay referee’s fees and costs and city and county taxes; (2) pay $406.36, with interest to Cleon E. Balkins; (3) pay one-third of the remainder to the plaintiffs; (4) pay to the county of Los Angeles, out of what is left such amount as the county and the estate agree upon, in settlement of the county’s mortgage; (5) pay the residue to the estate. Following the entry of this decree the property was advertised for sale and sold, according to a report filed by the referee ; a motion was noticed and made to confirm the sale; a motion was noticed and made to set the sale aside; an order was made setting the sale aside; again the referee advertised and sold and so reported; again motions were made to confirm and to set aside the sale, followed by an order filed March 22,

[415]

1943, entitled: ‘ ‘ Order of court denying motion to set aside SALE AND VACATE REFEREE’S REPORT, AND CONFIRMING SALE AND APPROVING REFEREE’S REPORT AND ALLOWING FEES AND COMPENSATION TO THE REFEREE.”

So much detail appears necessary to evaluate the objections raised to the notice of appeal, which is in the following words (omitting title of court and cause) : “To Clerk of the Superior Court of the above named County, and to the Plaintiffs.

“You and each of you will please take notice the the defendant Alvin L. Norrby, as executor of the estate of Mary Dar git Trowbridge, deceased, hereby appeal...... to the Supreme Court of the State of California from the Interlocutory decree, and all the proceedings subsequent thereto, including the final decree and sale order of distribution and all other orders subsequent to and including the interlocutory decree.

Balkins v. Norrby

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