Cotton-Macauley Co. v. Deshields

PLUMMER, P. J.,

pro tem.

On the third day of December, 1920, a judgment was entered in the superior court of Tehama County for the issuance of a peremptory writ of mandate, to be directed to the defendant Deshields, auditor of the county of Tehama, commanding him to forthwith draw and deliver to the plaintiff a warrant for. the payment of a claim against said county, in favor of the plaintiff, theretofore allowed by the board of supervisors, for building a certain bridge in said county. On the same day, the defendant Deshields and the intervener, Daniel B. Luten, who had been allowed to intervene in said action, claiming said moneys as due him from the plaintiff, and who had served a stop notice on the defendant Deshields under the provisions of sections 1183 and 1184 of the Code of Civil Procedure, served and filed their notice of appeal from the judgment and order of said court entered as

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above stated. Pursuant to the constitution of this state, the hearing and determination of said appeal has been transferred to this court. The matter is now before this court upon motion of the defendant Deshields to dismiss the appeal so far as it relates to himself. This motion is contested by the intervener, who is also an appellant.

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An examination of the record discloses the fact that the intervener in his complaint in intervention asks for no relief against the appellant Deshields, his contention therein being that the Cotton-Macauley Company should take nothing by reason of its action. Not having made the appellant Deshields a party defendant in his complaint in intervention, it is apparent that no judgment can be entered in this court in favor of the intervener, as against the defendant Deshields as auditor of the county of Tehama, adjudging and determining the right of the intervener to any part of the funds in the treasury of the county of Tehama, irrespective of any judgment that may be entered as between the plaintiff respondent and the intervener appellant.

The right of an appellant to have his appeal dismissed has been passed upon and confirmed in the following eases:

Estate of Wells,