Rounds v. Dippolito

[60]

EDMONDS, J.

George J. Garecht and Raymond H. Marks moved to vacate the judgment requiring them and other defendants to pay C. E. Rounds $908 for services rendered. The question now presented for decision concerns their right to appeal from the order denying the motion.

Joseph, Grace, Charles and Angelina Dippolito, who were the owners of certain land, entered into a contract with Garecht and Marks, doing business as Grading and - Excavation Company, to remove eucalyptus trees from the property. Garecht and Marks felled the trees and contracted with Vergil Grove to take them away. Grove, in turn, hired Rounds, who operated his own crane, to do a certain part of the work at the rate of $9.00 per hour.

Upon the completion of his contract, Rounds brought an action claiming $1,014.90 due for wages and for the foreclosure of a mechanic’s lien. In addition to the Dippolitos, he named as defendants Garecht, Marks, Grove and Jack McCoy. Several fictitious defendants, and also McCoy, were not served. The demurrer of Garecht and Marks was overruled, and after an answer was filed by them, the matter proceeded to trial.

Concurrently with the filing of this action (No. 58123), a separate one was brought by Garecht and Marks against the Dippolitos (No. 57843). By stipulation, the two cases were consolidated for trial. On May 3, 1948, a judgment was entered in the Rounds case (No. 58123) “against the defendants in the sum of” $908. On May 17, 1948, a judgment was entered in action No. 57843 in favor of Garecht and Marks and against the Dippolitos for $1,200, “provided, however, that there should be deducted from the judgment in favor of said plaintiffs the sum of $908.00 adjudged due and owing the plaintiff C. E. Rounds by the defendants Joseph Dippolito et al. in action No. 58,123.”

No notice of entry of judgment was served in the action brought by Rounds, and on July 8, 1948, Garecht and Marks served a notice of motion to vacate the judgment in that action pursuant to section 663 and 663a of the Code of Civil Procedure. The appeal is from the order denying the motion made in accordance with the notice. Rounds has moved to dismiss the appeal upon the grounds that: (1) appellants are not “aggrieved” parties under the judgment; and (2) even if aggrieved, they may not appeal from an order denying a motion under section 663 where such motion was made after 60 days from the entry of judgment and the same questions