Whalen v. Smith

[362]

SHAW, J.

This is a proceeding to compel the defendant, as judge of the superior court, to render judgment in the matter of the action to determine heirship in the estate of George Roach, deceased, entitled

Martin Whalen et al.

v.

Joshua B. Webster et al.,

in accordance with the decision of this court on appeal therein, as reported in 159 Cal. 260, [113 Pac. 373], and without taking further evidence upon the issue as to the number of surviving children of Thomas Roach, a deceased brother of said George Roach.

The contention of the petitioners is that the appeal in

Whalen

v.

Webster

was from a part, only, of the judgment in the proceeding, a part which presented but one question— namely, whether the language of the will of George Roach gave to the descendants of his brothers and sisters one-half of his estate or only one-fourth thereof, that all other matters determined by the judgment remained unaffected and are finally adjudicated, and, hence, that this court on said appeal, had no jurisdiction to reverse the whole judgment, or any part of it except the part appealed from, and that the mandate of reversal, although general in terms, can apply only to the part appealed from. And, further, they claim that, even if the supreme court had jurisdiction to reverse the entire judgment on appeal from a part only, yet, in view of the record in the case, the nature of the proceeding, the judgment rendered and the narrow question presented by the appeal, the general mandate should not be construed to apply to the whole judgment in the proceeding below, but only to that part from which the appeal was taken.

There are doubtless cases of appeals from a part of a judgment where the part appealed from is so interwoven and connected with the remainder, or so dependent thereon, that the appeal from a part of it affects the other parts or involves a consideration of the whole, and is really an appeal from the whole, and if a reversal is ordered it should extend to the entire judgment. The appellate court, in such cases, must have power to do that which justice requires and may extend its reversal as far as may be deemed necessary to accomplish that end. The code provides that a party may appeal from a specific part of a judgment. (Code Civ. Proc., sec. 940.) Ordinarily such an appeal would leave the parts not appealed from unaffected, and it would logically follow that such un