Deiter v. Kiser

[316]

LORIGAN, J.

The complaint averred an agreement entered into between defendants and one E. E. Bray upon the performance of which a deed conveying a two-thirds interest in certain mining property was to be delivered to her; that said E. E. Bray assigned her rights and interest under said contract to the plaintiff; that a deed conveying said interest to E. E. Bray was placed in escrow and while so in escrow was fraudulently altered by defendants and thereafter delivered to her, who, ignorant of the alteration had it recorded. Plaintiff, as assignee of said E. E. Bray, brought this action against defendants for a reformation of the deed. Defendants answered denying the averments of the complaint and filed a cross-complaint in which the plaintiff and E. E. Bray and P. W. Bray, her husband, were made cross-defendants, and a decree sought against them that the deed in question and the agreement under which it was executed be both declared void and the title of the defendants to the property described in the deed be quieted. The court ordered the Brays brought in as parties, which being done, they with their cross-defendant, the plaintiff Deiter, filed a joint answer to the cross-complaint.

Judgment was entered in favor of the defendants and cross-complainants in accordance with their cross-complaint. Plaintiff and the Brays moved for a new trial, which was denied, and they took a joint appeal from both the judgment and the order.

Thereafter a motion was made here by respondents to.dismiss both appeals as to all the parties appealing. The motion to dismiss the appeal of Deiter, the original plaintiff, was based on the ground that the attorneys giving the notice of appeal on his behalf had no authority to do so. As to the Brays it was based upon the ground that they were not parties having any interest in the action or parties affected or aggrieved by the judgment or order appealed from.

The motion to dismiss the appeal of Deiter was granted. (158 Cal. 259, 110 Pac. 921].) It was denied as to the Brays for the reason that its determination would require an examination of the entire record and of the merits of said appeal which this court will not make in advance of a hearing upon the merits. It was stated that the motion might be renewed when the cause came up on such hearing.