Thorpe v. North Moneta Garden Lands Water Co.

SHAW, J.

Plaintiff, as indorsee thereof, brought suit to recover from defendant upon a promissory note described in the complaint and alleged to have been made and delivered by defendant to one W. J. Williams. By a second count it was alleged that on August 22, 1906, defendant was indebted to W. J. Williams in the sum of $4,073.85 for money loaned to defendant, which defendant agreed to pay on or before one year thereafter, with interest at seven per cent per annum until paid, compounded half yearly, which indebtedness, it was alleged, had been assigned to plaintiff.

Defendant filed its answer denying all the allegations of the complaint, except the alleged incorporation of defendant and an intermediate indorser of said note. At the trial the issues thus joined were found in favor of plaintiff and judgment was rendered against defendant, from which, and an order denying defendant’s motion for a new trial, defendant appeals.

The record also contains what purports to he an appeal by John G. Orth from this judgment so rendered against defendant. Orth’s purported appeal is based upon the ground that, prior to the trial, he applied to the court for an order making him and said Williams, to whom the note was made, parties to the action, and permitting Orth to file a complaint in intervention. At the hearing of the motion the court made an order denying the application, “and Orth,” says his counsel, “prosecutes this appeal from the judgment for the purpose of reviewing the action of the court in denying his right to intervene.” So far as disclosed by the record, Orth is a stranger to the action, and his rights are in no wise affected by the judgment against the defendant. The order denying his application was, in effect, a final judgment as to him and his right to be heard at all. Upon the making of the order he was entitled to an immediate appeal therefrom, free and unhampered by the subsequent proceedings in the action or final judgment rendered against the defendant.

(Dollenmayer

v.

Pryor,

150 Cal. 1, [87 Pac. 616];

People

v.

Pfeiffer,

59 Cal. 90;

Donner

v.

Palmer,