Deiter v. Kiser

SLOSS, J.

The complaint alleged that a deed of certain mining property was made by defendants to E. E. Bray, and deposited in escrow; that the deed was, thereafter, fraudulently altered at the instance of defendants, and'was, after its delivery, filed for record on behalf of the grantee, who was ignorant of the alteration. The plaintiff, claiming as successor in interest of E. E. Bray, sought a reformation of the deed. The defendants answered, denying the allegations of the complaint, and filed a cross-complaint by which they sought, as against Deiter, E. E. Bray and F. W. Bray, a decree that the deed and the agreement under which it was executed be declared null and void, and that the title of. defendants to the property described in the deed be quieted. The court ordered the Brays brought in as parties.

Judgment went in favor of defendants in accordance with their prayer. This judgment was entered on May 8, 1909. Motion for new trial was denied on November 13, 1909. On November 5, 1909, there was filed a notice of appeal from the judgment and on November 19, 1909, a notice of appeal from the order denying a new trial. Each purported to be given in behalf of the plaintiff and the cross-defendants, and each was signed by the attorneys who had appeared for said plaintiff and cross-defendants in the action, the signatures being followed by the words “attorneys for plaintiff and cross-defendants.”

The respondents move to dismiss both appeals as to all parties appellant.

The motion to dismiss the appeals of Deiter, the original plaintiff, is based on the ground that the attorneys giving the notices had no authority so to do. It appears, from the

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showing made, that said plaintiff died on the twenty-seventh day of August, 1909, and that, on the seventeenth day of September, 1909, Mabel L. Deiter was, by an order of the superior court of Santa Cruz County, appointed administratrix of his estate. Letters of administration were issued to her four days later. No substitution of the administratrix has been made in the action, and none was applied for prior to the giving of notice of the motions now before us. The notices of appeal do not appear to have been given in pursuance of any order, authority, or direction from her, or in her behalf.