McKenzie v. Hill

KERRIGAN, J.

Motion to dismiss appeal.

The appeal is from an order made in proceedings supplementary to execution, directing appellants, as garnishees, to apply $876 toward the satisfaction of a judgment recovered by plaintiff McKenzie against defendant Hill. The ground of the motion to dismiss is that no notice of such appeal was served upon the defendant Hill.

The undisputed facts in the case are as follows: On the seventeenth day of January, 1907, respondent McKenzie recovered judgment against defendant Hill for the sum of $3,805, and assigned the same to C. M. Craig. Craig prepared an affidavit as the basis for an order for the examination of appellants, the San Francisco Stock and Exchange Board and A. B. Ruggles, its president. Upon this affidavit the Hon. James M. Troutt, one of the judges of the superior court of the city and county of San Francisco, made an order, requiring the presence of said appellants before said judge to be examined concerning the possession of the sum of $876, money belonging to defendant Hill not exempt from execution, and which money was subject to be applied.toward the satisfaction of said judgment. After the examination of the president of said stock and exchange board the court ordered the application of the said $876 toward the payment of said judgment. No notice of appeal was served upon defendant Hill.

Under these circumstances appellants contend that defendant Hill would be affected by a reversal of the order appealed from, and hence is an adverse party as contemplated by section 940, Code of Civil Procedure; and as no notice of appeal was served upon him the appeal should be dismissed.

[80]

It is not at all clear to us in what manner Hill could be injuriously affected by a reversal or modification of the judgment appealed from; but in any event we are convinced that he was not a party to the proceeding, and therefore was not entitled to notice. ‘ ‘ The adverse party upon whom the notice of appeal is to be served is the party who appears by the record to be adverse, and the record to be considered for that purpose is the record of the proceedings in which the appeal is taken.”

(In re Ryer,

110 Cal. 569, [42 Pac. 1082].) An examination of the record here shows that in an action against Hill a judgment had been obtained, which is now final and in full force and effect, and upon which judgment an execution had been issued; that in proceedings supplementary to execution the garnishees were examined, and the order appealed from was made. In that proceeding Hill was not served, nor did he in any way participate therein. It thus, appears, to reiterate, that Hill was not before the court, and was not a party to that proceeding. Proceedings supplementary to execution, while collateral to an original action, are still quite independent of it. Indeed, they embrace all the elements of an independent civil action. It has its own record, and only parties thereto need be served with notice of appeal. In