Petersen v. Klitgaard

TYLER, P. J.

Motion to dismiss appeal. The action was one for negligence brought against defendant and respondent C. F. Klitgaard and defendant and appellant Naknek Packing Company as joint tort-feasors. A verdict was rendered in favor of plaintiff and against defendant Naknek Packing Company for the sum of $15,000 and in favor of defendant C. F. Klitgaard and against plaintiff.

Defendant and respondent Klitgaard moves to dismiss the appeal as to him on the ground that a joint tort-feasor against whom a judgment is taken cannot raise the point on his appeal that the judgment from which the appeal is taken exonerates the other joint tort-feasors, citing

Blackwell

v.

American Film Co.,

189 Cal. 689 [209 Pac. 999];

Sickles

v.

McWhitney Power & Elec. Co.,

177 Cal. 278 [170 Pac. 599]. It is unnecessary to discuss this question as reference to the notice of appeal shows that no appeal has been taken from the judgment in favor of Klitgaard. The notice of appeal reads in substance as follows:

“You and each of you are hereby notified that Naknek Packing Company, a corporation, defendant in the above-entitled action, hereby appeals to the Supreme Court of the State of California, from the judgment made, given and entered in the above-entitled action in the above-named Superior Court on the 27th day of November, 1928, in favor of said plaintiff, and against said defendant, Naknek Packing Company, for the sum of $15,000.00, together with plaintiff’s costs amounting to $227.00, and from the whole of said judgment.”

By reference to the notice of appeal it will be seen that the phrase “and from the whole of said judgment” contained in the notice refers solely to the judgment against

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the appellant Naknek Packing Company. There are two judgments in the case, one in favor of the plaintiff and against the packing company and the other in favor of Klitgaard and against plaintiff. Nothing whatever is said in the notice of appeal as to the judgment in favor of Klitgaard. No appeal having been taken from the latter judgment, there is nothing to dismiss. The motion is therefore denied.