Butte County v. Boydstun

Myrick, J. The defendants Cartwright, Gray, and Snider petitioned the board of supervisors that a by-road be laid out and established over lands owned respectively by them and the defendant Boydstun, and gave a bond for the payment of the cost of viewing'and laying out the road. The petitioners consented to the taking of their lands for the road, but the defendant Boydstun resisted. By order of the board of supervisors this action was brought for the condemnation of the lands for a road. Judgment went for plaintiff, condemning a strip across the lands of all the defendants. The defendant Boydstun filed notice of appeal from the order denying his motion for a new trial, and from the judgment in [190]favor of plaintiff and against him, and the whole thereof, and from the final order of condemnation, and the whole thereof. The notice was not served on the other defendants or their attorney. These defendants therefore move that the appeal be dismissed.

According to section 940, Code of Civil Procedure, a notice of appeal must be served “ on the adverse party or his attorney.” The action was prosecuted on the petition of the defendants not served with the notice; it is true, the government, represented by the county, was, in name, prosecuting the action, but the defendants now moving were interested in having the judgment stand for the condemnation the whole distance, and in not having it reversed as to the lands of Boydstun. If the judgment of condemnation as to Boydstun should be reversed, it might seriously affect them, as it would leave their lands condemned, with noi outlet 'over the lands of Boydstun. In this view they were parties adverse to him. We think Boydstun should have served his co-defendants with notice of appeal.

Appeal dismissed.

Morrison, C. J., Boss, J., Shaupsteln, J., and McKee, J., concurred.