MacDonald v. Superior Court

California Court of Appeal Oct 23, 1929 No. Docket No. 7085.Published

Before: Tyler

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Holding. The court held that a non-appealing co-defendant who was successful in the lower court is an "adverse party" who must be served with a notice of appeal, and failure to do so deprives the appellate court of jurisdiction.

Issues

Whether a non-appealing co-defendant who obtained a favorable judgment in the Justice's Court is an "adverse party" requiring service of notice of appeal.
Whether the Superior Court lacked jurisdiction to hear an appeal where the appellant failed to serve notice upon all adverse parties.

Disposition. Writ denied

Quotations verified verbatim against the opinion

“The statute requires that notice of appeal must be served upon the adverse party and compliance therewith is necessary to the jurisdiction of the appellate court”

“A nonappealing co-party is an adverse party if his interest may be affected by a reversal or modification of the judgment appealed from.”

“Petitioner’s co-defendants having an interest in relation to the subject of the appeal should have been served with notice of the appeal. Not having been served, the Superior Court was without jurisdiction to hear the appeal.”

TYLER, P. J.

Certiorari

to review the action of the Superior Court in dismissing an appeal taken from a judgment rendered in the Justice’s Court.

In substance the petition recites that on the twenty-eighth day of July, 1928, the Golden West Credit and Adjustment Company, a corporation, commenced an action in the Justice ’s Court of the City and County of San Francisco, against J. D. Small and F. L. W. MacDonald, individually and as copartners doing business under the firm name of MacDonald & Company, and Arthur A. Goepp and F. J. Fuller, individually and as copartners doing business under the name of Fuller

Goepp. Defendants Small, MacDonald and Goepp appeared separately

in propria persona

and filed their respective denials. Trial was had and judgment was rendered against MacDonald in favor of plaintiff and all other defendants. MacDonald filed his notice of appeal from the judgment and served the same upon the attorney for plaintiff. Motion to dismiss the appeal was filed, upon the ground that the court had no jurisdiction to hear and determine the same for the reason that no notice of the appeal was ever served upon the defendants in whose favor judgment was rendered, it being claimed that they were adverse parties by reason of the character of the judgment rendered and should, therefore, have been served.

The statute requires that notice of appeal must be served upon the adverse party and compliance therewith is necessary to the jurisdiction of the appellate court except in certain special cases, of which -this is not one.

[425]

Broadly stated, an “adverse party” within the meaning of the provisions of the Code of Civil Procedure is defined to be a party to the record whose interest in the subject matter of an 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, and this, irrespective of the question of whether he appears upon the face of the record in the attitude of plaintiff, or defendant, or intervener.

MacDonald v. Superior Court

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TYLER, P. J.

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