Chung Sing v. Southern Pacific Co.

ANGELLOTTI, C. J.

This is a motion to dismiss an appeal from a judgment entered February 16, 1917, as well as from certain orders.

The principal grounds of the motion to dismiss the appeal are, first, that no notice of appeal was filed on behalf of defendant Blackburn within the time allowed by law, and, second, that the notice of appeal filed is insufficient as to any of the defendants, in that it does not sufficiently identify the judgment appealed from. Both of these alleged grounds are based on the fact that in the notice of appeal signed by the attorneys of all the defendants and filed within due time, April 10, 3917, it is stated that “the defendants, Southern Pacific Company, a corporation, C. A. Burton and H. W. Crumrine, hereby appeal from . . . that certain judgment, in favor of the plaintiff and against said defendants and each of them, entered on or about the 16th day of February, A. D. 1917, in book 407, page 4 of judgments,” etc., and from an order entered March 30, 1917, reducing said judgment to thirteen thousand dollars. The name of the defendant Geo. W. Blackburn did not appear therein, the name “C. A. Burton” appearing in lieu thereof, owing to mistake and inadvertence. The superior court, after the time for appeal elapsed, made an order allowing the notice to be amended in this respect, upon a showing to its satisfaction of the mistake. It is claimed that the superior court had no power to allow such an amendment after the time for appeal had expired.

In so far as defendants Southern Pacific Company and H. W. Crumrine, who were originally and specifically named

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in the notice of appeal, are concerned, there is no force in the claim that the appeal must be dismissed. It is perfectly plain, in view of the record, despite the misnomer of the other appellant, that the judgment referred to in the notice is the judgment in favor of Chung Sing and against said defendants and George W. Blackburn for eighteen thousand dollars, and costs, entered February 16, 1917, in boob 407 of Judgments at page 4, and reduced by five thousand dollars by order entered March 30, 1917. In other words, the judgment attempted to be appealed from by these defendants was sufficiently identified by the notice.

As to defendant Blackburn a different question is presented, owing to the fact that in attempting to specifically name the defendants in the notice of appeal another name was substituted for his, with the result that his name did not appear at all. Was there any notice of appeal filed on his behalf within the time allowed by law? We are of the opinion that this question should be answered in the affirmative. The verdict and judgment in the cause were against the Southern Pacific Company, Geo. W. Blackburn, and H. W. Crumrine only, all of whom were represented in the action by the same attorneys. There was no verdict or judgment against any one named Burton. The notice of appeal also refers to an order of the superior court made and entered September 12, 1916, granting in part and denying in part