Parkside Realty Co. v. MacDonald

ANGELLOTTI, J.

This is an appeal by defendant Catherine Black from an order denying her motion to set aside and vacate the judgment in the above entitled action in so far as it affects or relates to any of her rights. The material facts, so far as we need state the same for the purposes of this decision, are as follows: The action was one brought by plaintiff,

[344]

the Parkside Realty Company, a corporation, against L. D. MacDonald, on March 29, 1906, to quiet its title to certain real property in the city and county of San Francisco. On November 19,1906, MacDonald filed his answer to an amended complaint of plaintiff, and on November 11, 1907, he filed his cross-complaint against plaintiff and nine other persons, including Catherine Black, who had succeeded to the title of the plaintiff to all of said property, said Catherine Black having succeeded to such title to two parcels thereof on September 6, 1907, with notice and knowledge, it was found by the trial court, of MacDonald’s claim to the same. MacDonald claimed by his cross-complaint and was adjudged to have the right to acquire the title to all of'said property by virtue of a contract for the purchase thereof with a predecessor in title of plaintiff, upon the payment of two thousand dollars. J. J. West, an attorney of this court, was the attorney of record for „the plaintiff in the action, having signed the complaint as such attorney. The cross-complaint of MacDonald was never served on the new parties brought in thereby, but only on said West, as attorney for plaintiff. On July 11, 1908, West filed an answer to this cross-complaint on behalf of plaintiff and all the defendants except MacDonald, subscribing it as “attorney for plaintiff and for defendants to cross-complaint of L. D. MacDonald.” The action was tried on May 12, 1911, West appearing as attorney for plaintiff and all the defendants except MacDonald. The trial resulted in findings and judgment in favor of MacDonald against plaintiff and all the other defendants, the judgment being given and entered on June 29, 1911. On August 29, 1911, a notice of appeal from said judgment on behalf of plaintiff and all the defendants other than MacDonald was filed, signed by said West as their attorney, and by Morrison, Dunne & Brobeck as counsel. On August 29, 1911, said West, purporting to represent all of the parties for whom he appeared, presented to the court for settlement a statement on motion for a new trial, and thereafter presented and submitted such a motion, which was denied on September 5, 1911. On November 5, 1911, he signed and filed a notice of appeal from such order on behalf of the parties for whom he had thus appeared. According to her affidavit filed on the motion to vacate, Catherine Black, who paid $5,907.50 for the prop