Estate of Young

M. Young died, leaving a last will, which was admitted to probate in the superior court of Santa Cruz County, and letters testamentary thereon were issued to A. St. Clair and William Armstrong on the 27th of April, 1903. On December 12, 1904, Pauline Young Hyde, one of the appellants, filed a petition for partial distribution, in which she alleged that the decedent had left as his sole heirs four children, of whom she was one, and that said decedent had, by an omission not appearing to be intentional, failed to provide in his will for any of his said children. The executors met this petition by a motion to strike the same from the files, and a similar motion was made, upon notice to the petitioner, by K.A. Osborn and three others named as residuary devisees in the will. Subsequently, a similar petition for partial distribution was filed by Sarah Young, claiming to be one of the children and heirs of M. Young, and motions to strike this petition from the files were made by the executors and the four devisees above mentioned. The petitions and motions having been submitted, the court made an order, in which it "adjudged and decreed that the said petitions of Pauline *Page 175 Young Hyde and Sarah Young, and each of them, be, and the same hereby are, denied and dismissed." From this order the petitioners prosecute this appeal.

The points made by the appellants for reversal appear in a bill of exceptions. This bill contains a recital by the judge of the trial court to the effect that the draft of the proposed bill of exceptions had not been served on the respondent devisees within the time allowed by law. Said devisees objecting to the settlement of the bill, the judge sustained their objections and refused settlement of the bill "so far as it relates to or purports to in any way bind said devisees," and settled it "so far as it relates to the executors." It is now contended by the respondents that the order must be affirmed for want of a bill of exceptions binding all the necessary parties to the appeal.

Under section 650 of the Code of Civil Procedure, the draft of a bill of exceptions, or a copy thereof, must, within ten days after notice of entry of judgment, be served upon the adverse party. The phrase "adverse party" is also found in section 940, relating to service of notice of appeal, and as used in that section has been construed many times by this court. Such "adverse party" is defined in Senter v. De Bernal, 38 Cal. 637, to be "every party whose interest in the subject-matter of the 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." (O'Kane v. Daly, 63 Cal. 319; Williams v. SantaClara Min. Assn., 66 Cal. 195, [5 P. 85]; In re Castle Domeetc. Co., 79 Cal. 249, [21 P. 746]; Harper v. Hildreth, 99 Cal. 267, [33 P. 1103]; Vincent v. Collins, 122 Cal. 390, [55 P. 129]; Estate of Scott, 124 Cal. 671, [57 P. 654]; Elliott v.Superior Court, 144 Cal. 406, [103 Am. St. Rep. 102,77 P. 1109].) And, except as hereinafter stated, service of a notice of appeal on every adverse party is essential to give the appellate court jurisdiction of the appeal. (See cases cited above.) It is true that notice need not be served on all parties to the action if a modification sought can be effected without affecting the rights of those not served. (Williams v. Santa Clara Min. Assn.,66 Cal. 195, [5 P. 85]; Miller v. Thomas, 71 Cal. 406, [12 P. 422].) And not every person who may be *Page 176 affected by a reversal or modification of the judgment or order is an "adverse party," who must be served. The "adverse party" upon whom a notice of appeal is to be served is the party who appears by the record to be adverse (Harper v. Hildreth, 99 Cal. 267, [33 P. 1103]; In re Ryer, 110 Cal. 556, [42 P. 1082]; Inre Bullard, 114 Cal. 462, [46 P. 297]) — that is, a party who has appeared and taken part in the proceeding in the lower court.(Estate of McDougald, 143 Cal. 476, [77 P. 443].)