Senter v. De Bernal

California Supreme Court Jul 1, 1869Published

Before: Sanderson

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Holding. The court held that in a partition action, all parties are considered 'adverse parties' if their interests would be affected by a reversal or modification of the judgment, and failure to serve notice of appeal upon all such parties renders the appeal ineffectual.

Issues

What is the definition of an 'adverse party' under the code regarding the service of notice of appeal?
Must all parties to a partition action be served with a notice of appeal when the appeal seeks to overturn the entire final judgment?

Disposition. dismissed

Quotations verified verbatim against the opinion

“Every party whose interest in the subject-matter of the appeal is adverse to or will be affected by the reversal or modification of the judgment or order from which the appeal has been taken, is, we think, an “adverse party””

“no appeal from the whole of the final judgment can be made effectual unless all of the parties to it are made parties to the appeal, either as appellants or respondents”

“It follows that the motion to dismiss the appeal must be sustained, and it is so ordered.”

Synopsis

Adveese Pajrtt.—By the words “adverse parly,” used in Sections 335 and 337 of the Code, in relation to appeals, is meant every party whose interest in the suhject-matter of the appeal is adverse to a reversal or modification of the judgment or order from which the appeal has been taken, irrespective of the question whether he appear upon the record in the attitude of plaintiff, or dedefendant, or intervenor.

Who Mat Appeal and Who Must be Notified.—The code allows any party who feels aggrieved to appeal without joining any one else, whether the judgment against him he joint or several; hut he is required to notify all other parties who are interested in opposing the relief which he seeks hy his appeal, if they have formally appeared in the action, and if he does not he will he not only entitled to no relief against those not notified, hut also against those noti- • fled, if the relief he seeks is of such a character that it cannot be granted as to the latter without being granted as to. the former also.

Pasties in Pabtition—Theeb Relation to Each Otheb.—The parties to a partition suit are all actors, or plaintiffs, each against each and all others. Appeals ebom the Inteblocutoby Judgment rsr Pabtition.—Appeals may bo taken from it by the parties aggrieved without notice to anybody except those who were parties to the particular issue which they seek to have reviewed.

Idem—Ebom Final Judgment. —If tho object of the appeal be to reverse or modify the final judgment in partition, all tho parties to tho judgment must bo made parties to tho appeal, either as appellants or respondents, or the appeal will prove ineffectual.

Idem. — In an action for partition, if there be eleven plaintiffs and fifty-seven defendants, and five of the defendants join in an appeal from the whole of the final judgment, and give the plaintiffs notice, but not their co-defendants, tho appeal will be dismissed.

Sanderson, J., delivered the opinion of the Court: This is an action for the partition of the Bancho Santa Teresa, situated in the County of Santa Clara. Sixty-eight persons, according to the complaint and final judgment, were interested in the rancho, and were made parties to the action—eleven of whom appear on the record as nominal plaintiffs, and the remainder as defendants. So far as the transcript shows, however, only five of the defendants formally contested the action. These five took separate exceptions to the report of the referees who made the partition in the field. Them exceptions were overruled and the report finally confirmed. They then united in a motion for a new trial of their exceptions, which motion was denied. They then united in an appeal to this Court from the whole of the final judgment and the order denying them a new trial of their exceptions. The notice of motion for new trial was addressed to the nominal plaintiffs, but not to the nominal co-defendants of the appellants or any of them, and was served on the nominal plaintiffs only. The notice of appeal was addressed to the plaintiffs and the co-defendants of the appellants, but was served only upon the plaintiffs.

Such being the condition of the appeal, as shown by the [640]transcript, the plaintiffs have made a motion to dismiss it, and, in the further support of the motion, have filed affidavits,-from which it appears that all of the defendants appeared in the action, but were not made parties to the motion dor a new trial, nor to this appeal, and did not, therefore, participate either in making the statement on the motion for a new trial, or the statement on this appeal; and, further, that the notice of appeal, although addressed to the co-defendants of the appellants, was not served upon any of them.

In support of the motion, it is argued that the appeal involves either a reversal or modification of the final judgment, neither of which. can be granted, from the nature of the case, without affecting or disturbing the rights of those defendants who have not been made parties to the appeal, and over whom, therefore, this Court has no jurisdiction; that in actions of this character all persons who are interested in the estate to be divided are actors as against each and every other, whether they appear upon the face of the record as plaintiffs or defendants, and each, therefore, as to every other, is an 11 adverse party” within the meaning of the law in relation to appeals, and, therefore, entitled to be made a party to-' and notified of all proceedings taken by any one of them for the purpose of changing or in any respect affecting the final judgment of the lower Court.

Senter v. De Bernal

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