O'Kane v. Daly

Thornton, J. This action is brought by O’Kane to be discharged from a trust under an assignment made to him as assignee by Daly and Hawkins for the benefit of creditors, under the provisions of the Civil Code. Several of the creditors were made parties defendant, among others the Hibernia Savings and Loan Society. Daly and Hawkins were also made defendants.

The society above named answered, denied several allegations of the complaint, and among other matters alleged that the assignment to O’Kane was void, and asked that it be so adjudged. Mary and Jane O’Meara also in their answer asked that the assignment be adjudged null.

Daly and Hawkins and several other defendants consented that a judgment should be entered discharging the assignee [319]from the trusts of the assignment, and in accordance with the prayer of complaint. The society and the O’Mearas did not join in this consent. Judgment was rendered and entered in favor of plaintiff, discharging him from the trusts above mentioned. The judgment embraced other matters not necessary to be here mentioned. The Hibernia Savings and Loan Society alone prosecutes this appeal.

A motion is made by counsel for respondent O’Kane to dismiss this appeal, on the ground that no proper service of notice of appeal has been made. The notice of appeal was served on plaintiff alone.

We are of opinion that the co-defendants of the appellant were all interested in the judgment, and would be affected by its reversal, and by consequence the notice of appeal should have been served on each of them. (Senter v. Bernal, 38 Cal. 640; Hiscock v. Phelps, 2 Lans. 118; Cotes v. Carroll, 28 How. Pr. 446; Thompson v. Ellsworth, 1 Barb. Ch. 627.)

The only appeal attempted to be taken in the case is from the judgment, and as such appeal was not properly taken, we cannot consider any one of the various orders to which our attention has been called, no one of them being appealable.

The motion to dismiss the appeal must be granted. So ordered.

Myrick, J., and Sharpstein, J., concurred.