Marr v. Superior Court

NOURSE, P. J.

In response to an alternative writ of mandate the respondent appeared by demurrer, motion to quash and by answer. No proof was offered upon any of the allegations of the answer, and the order to show cause was submitted on these two issues—whether the service of notice of appeal upon the wife of petitioner was necessary, and whether the lapse of time caused by respondent’s refusal to set the appeal for hearing would make a writ of mandate futile.

The agreed facts are that an action was filed in the justice’s court against Robert L. Marr and his wife to recover on a promissory note executed by both defendants. The wife consented that judgment be taken against her, but whether the offer was fully accepted is disputed. Separate judgments were entered against both defendants in identical amounts. Robert Marr alone filed notice of appeal from the judgment adverse to him, but did not serve a copy on his wife. In due time Marr made a motion in superior court to set the cause for trial. The motion was denied. Respondent defends the denial upon the sole ground that the appeal was defective because notice was not served upon the wife.

[395]

Section 974 of the Code of Civil Procedure provides that “Any party dissatisfied with the judgment . . . may appeal . . . The appeal is taken by filing a notice . . . and serving a copy on

the adverse

party.”

An “adverse party”, within the meaning of this section, has been defined as one “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”.

(Senter

v.

De Bernal,

38 Cal. 637, 640.) In the early ease of

Thompson

v.

Ellsworth,

1 Barb. Ch. R. 624, 627, the New York court, in interpreting the New York statute upon which our code section is based, said that the term “adverse party” referred to one “whose interest in relation to the subject of the appeal is in