Randall v. Hunter
Before: Thornton
Synopsis
Appeal—Notice of—Service on Defendant not Appealing.—Where one of several defendants appeals from a judgment or order rendered against them all, the defendants not appealing are adverse parties within the meaning of section 940 of the Code of Civil Procedure, and should be served with the notice of appeal, if the reversal or modification of the judgment or order appealed from would affect their interests in the subject-matter of the appeal.
Id.—Action against Partners—Default of One Defendant. —The action was brought on a promissory note alleged to have been executed by the defendants as partners. One of the defendants made default, and a trial being had as to the other, a verdict was rendered against him. - Judgment was thereupon entered against both of the defendants, from which, and from an order denying him a new trial, the defendant against whom the trial was had appealed. Held, that the defendant who made default was not an adverse party, and that the notice of appeal was not required to be served on him.
Thornton, J. Motion to dismiss appeals.
Randall sued Hunter and Gill as partners, on a promissory note signed “ Gill and Hunter.” Gill made no defense, and judgment passed against him by default. Hunter answered and denied the execution of the note by Gill and Hunter as partners, and further alleged that the note was executed to plaintiff by Gill without the knowledge or consent of Hunter; that it was not executed for the use and benefit of the firm of Gill & Hunter, but for the individual use and benefit of Gill alone; that the whole consideration for the note passed to the sole use of Gill, and none of it to the firm; that when plaintiff received this note on its execution and paid to Gill the consideration .therefor, he knew all the foregoing facts, and further knew that the firm was not to receive and did not receive any portion of the consideration for said note.
On this answer, trial was had, which resulted in a verdiet against Hunter, and judgment was entered against both defendants,—against Gill on his default, and against Hunter on the verdict.
[82]Hunter moved for a new trial, which was denied. He then appealed from the judgment and from the order denying his motion for a new trial. The notice of appeal was not served on Gill, but on plaintiff only.
Plaintiff now moves to dismiss the appeals, on the ground of the failure of Hunter to serve the notice of appeal on his co-defendant, Gill.
By the provisions of the statute, the notice required to take an appeal must be served on the “adverse party.” (Code Civ. Proc., sec. 940.)
If the reversal or modification of the judgment or order appealed from will affect the interest of Gill in the subject-matter of the appeal, he would be an adverse party within the meaning of the section above cited. (Senter v. Bernal, 38 Cal. 637; Thompson v. Ellsworth, 1 Barb. Ch. 627; Williams v. Santa Clara M. Co. etc., 66 Cal. 193.)
How, it appears here that Gill has not appealed, and the judgment appealed from was rendered against him by default. If the judgment as to Hunter is reversed, it would still stand unreversed as to Gill, and therefore he would not be affected by a reversal. If the judgment is affirmed, the judgment appealed from would remain unchanged, and manifestly Gill’s interest would not be affected by the judgment of affirmance.
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