Potrero Neuvo Land Co. v. All Persons Claiming (1909) · DecisionDepot

Potrero Neuvo Land Co. v. All Persons Claiming

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Mar 24, 1909 No. S.F. No. 5130.Published

Before: Henshaw

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Holding. The court denied a motion to dismiss an appeal, ruling that notice of appeal need only be served on adverse parties appearing of record and that the alternative method of appeal under the McEnerney Act requires no service on adverse parties.

Issues

Whether an appellant must serve notice of appeal upon all potential claimants in an action under the McEnerney Act.
Whether the failure to serve non-adverse parties warrants dismissal of an appeal.

Disposition. Motion to dismiss denied.

Quotations verified verbatim against the opinion

“It was necessary to serve only the parties who appear from the record in the proceedings in which the appeal was taken to be adverse.”

Synopsis

MOTION to dismiss an appeal from a judgment of the Superior Court of the City and County of San Francisco. Frank J. Murasky, Judge.

The facts are stated in the opinion of the court.

[372]

HENSHAW, J.

Plaintiff brought its action under the provisions of the MeEnemey Act to establish and quiet its title to certain lands within the city and county of San Francisco. Theresa Cuneo and Auguste Deprette appeared, pleaded title each respectively to one fifty-vara lot embraced within the lands described in the complaint, and asked for a judgment of dismissal of the complaint as to themselves and the lasids in question. The court, for reasons not necessary here to consider, gave judgment “that said complaint be and the same is hereby dismissed as to defendants Theresa Cuneo and Auguste Deprette.” From this judgment plaintiff appeals within due time, filing its notice of appeal upon the third day of December, 1908. This motion is made to dismiss the appeal upon the ground that the notice of appeal was served only upon Theresa Cuneo and Auguste Deprette. It is argued that while, in terms, the complaint is dismissed only as to the named defendants, this judgment of dismissal operates in favor of all persons in the world who claim or may claim any interest in the real property as to which the complaint was dismissed; that, therefore, to appeal successfully under such circumstances, the appellant must serve notice of appeal upon the whole world. The answer to this argument is twofold: 1. That it was necessary to serve only the parties who appear from the record in the proceedings in which the appeal was taken to be adverse.

(In re Ryer,

110 Cal. 556, [42 Pac. 1082].) The burden is upon the party moving to dismiss the appeal to show from the record that a party not served was adverse, and where the record does not show affirmatively that a party not served was an adverse party to the motion in the court below, the appeal will not be dismissed.

(Niles

Gonzalez,

152 Cal. 90, [92 Pac. 74].) Defaulting defendants are not adverse parties to other defendants when there is no joint relation alleged between them, and a judgment against each is several and independent.

(Kenney

Potrero Neuvo Land Co. v. All Persons Claiming

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Synopsis

HENSHAW, J.

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