Altpeter v. Postal Telegraph-Cable Co.

HART, J.

This is an action for damages in the sum of five hundred dollars alleged to have been incurred by the plain

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tiffs through the act of the defendant in cutting down and thus destroying four walnut trees standing and growing immediately in front of the land and houses of the plaintiffs, situated on Court Street, in the town of Woodland.

The cause was tried before a jury and a verdict returned in favor of plaintiffs for the amount sued for. The court thereupon entered judgment for treble the sum assessed by the jury (Civ. Code, sec. 3346, and Code Civ. Proc., sec. 733), and this appeal is from said judgment by Postal Telegraph-Cable Company, a corporation, organized under the laws of the state of New York.

Counsel for the respondents has moved a dismissal of this appeal on the ground that the appellant is not a party to this action and, therefore, not a “party aggrieved,” within the meaning of section 938 of the Code of Civil Procedure.

There is, in our opinion, no escape from the conclusion that the position of the respondents on the motion to dismiss is well taken. It appears that there are two separate and distinct corporations named" and known as “Postal Telegraph-Cable Company,” one of which was organized and existing under and by virtue of the laws of the state of New York and the other organized and existing under and by virtue of the laws of the state of California.

The record discloses that the corporation originally sued by the plaintiffs was the New York corporation, the complaint alleging that the defendant, Postal Telegraph-Cable Company, was a corporation organized, existing and doing business under and by authority of the laws of the state of New York. When the trial of the ease was proceeded with, it was, in the outset thereof, discovered that, if the plaintiffs suffered the damage as set out in the complaint, such damage was caused by the California corporation named and known as Postal Telegraph-Cable Company and not by the New York corporation of that name, whereupon counsel for the plaintiffs applied to the court for leave to amend the complaint so as to substitute the California corporation for the New York corporation as party defendant. After an extended discussion between counsel, in the course of which the attorney for the appellant declared that the two corporations were distinct entities, and that he was in court for the sole purpose of representing the New York corporation and that the California