Miller v. Bate

McKee, J. : On the 26th of December, 1879, the Superior Court of the City and County of San Francisco, Department Seven, made the following order: “ The Court having duly considered plaintiff’s motion that -a writ of assistance issue herein, it is now ordered that said motion be granted, and that a writ of assistance issue in accordance therewith.” From this order William Nitze, William H. Bate, Jr., and Vincent W. Bate appeal. Hot one of the appellants is a party to the action.

• The authenticated copy of the proceedings had in the Court below, and upon which the appeal is presented, shows that on the motion for the order certain evidence was submitted “ by the parties to the motion”; that the plaintiffs offered and submitted certain affidavits and exhibits of deeds annexed thereto; and that the appellants submitted certain affidavits and exhibits of records of proceedings in the Probate Court, and of the Justice’s Court of San Francisco; but it does not show that the appellants were made parties to the motion, by service upon them of any motion, or.notice of motion, or order to show cause for the issuance of a ívrit of assistance against them, either as parties to the action or as terre-tenants. Kor is there in the transcript a copy of any motion, or notice of motion, or order to show cause. If there were any such papers used on the hear[136]ing of the motion in the Court below, they would be in the transcript; for the transcript should contain all the papers used on the hearing. (§ 951, Code Civ. Proc.) And as no moving papers are to be found in it., the order appealed from must have been made upon an ex parte application against the defendant in the action. That being the case, the order is inoperative against any other person than the defendant; and as the appellants arc not aggrieved by an order to which they were not made parties, and as the order is inoperative against them, they have no standing on appeal, and their appeal must be dismissed. (People v. Grant, 45 Cal. 97.)

It is so ordered.

Ross, J., and McKinstry, J., concurred.