Millikin v. Houghton

California Supreme Court Apr 20, 1888 No. No. 11334Published

Before: Searls

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Holding. The court dismissed the appeal for lack of jurisdiction because the appellant failed to serve the notice of appeal upon all adverse parties, specifically the non-appealing co-defendants whose interests would be affected by a reversal.

Issues

Whether an appeal must be dismissed for failure to serve notice of appeal on all co-defendants whose interests may be affected by a reversal of the order.
Whether a respondent has the right to object to an appellant's failure to serve other parties with notice of appeal.

Disposition. dismissed

Quotations verified verbatim against the opinion

“This court has not jurisdiction to hear an appeal from a judgment, unless the appellant shall have served a notice of appeal on all the adverse parties; that is to say, upon all whose rights may be affected by a reversal of the judgment”

“The defendants not served with the notice of appeal in this case are as directly interested in the affirmance or reversal of the order appealed from as are the two defendants who were served.”

“The appeal is dismissed.”

Synopsis

Appeal—Notice op—Service on Adverse Parties—Quashing Execution. — Where an execution issued against all the parties to a judgment is quashed upon the motion of a part only of them, and an appeal from the order is taken by the judgment creditor, all the persons against whom the judgment was rendered are adverse parties, within the meaning of section 940 of the Code of Civil Procedure, and should he served with notice of the appeal; if this be not done, the supreme court acquires no jurisdiction to hear the appeal, and the same will be dismissed.

Searls, C. J. This is an appeal from an order of the court below quashing a writ of execution on motion of two of the defendants, viz., S. 0. Houghton and the Hibernia Savings and Loan Society.

Respondents, the Hibernia Savings and Loan Society and S. O. Houghton, moved to dismiss the appeal upon the grounds that the other defendants in the cause, viz., F. H. Burke, R. P. Kelly, John Higgins, and P. Hannigan, were not mentioned in the notice of appeal, and were not served therewith.

Turning to the decree, we find that it is against all of the defendants above named. The Hibernia Savings and Loan Society alone appealed to this court, and the judgment, as against it, was reversed. Upon the return of the case to the court below, plaintiff dismissed the action as to said last-named defendant, and thereupon procured an execution with a copy of the decree attached, which was and is in all respects such as might have issued upon the decree as originally entered, except that it recites the appeal, reversal, and dismissal as to the defendant the Hibernia Savings and Loan Society.

This writ was quashed by the court, on motion of the defendants, as hereinbefore mentioned, and the notice of appeal therefrom is addressed to and served upon them only.

The notice of appeal must be served upon the adverse party or his attorney. (Code Civ. Proc., sec. 940.)

The term “adverse party” has been held to include all the parties to the action having an interest to be affected by a reversal, and in. O’Kane v. Daly, 63 Cal. 317, it was held that the notice of appeal by one of several co-defendants should be served, not only on the plaintiff, but also on the non-appealing co-defendants, they having an interest in the judgment to be affected by the reversal.

[541](Senter v. Bernal, 38 Gal. 640; Hiscock v. Phelps, 2 Lans. 118; Cotes v. Carroll, 28 How. Pr. 446; Thompson v. Ellsworth, 1 Barb. Oh. 627.)

In Williams v. Santa Clara Mining Co., 66 Cal. 194, it was said: “This court has not jurisdiction to hear an appeal from a judgment, unless the appellant shall have served a notice of appeal on all the adverse parties; that is to say, upon all whose rights may be affected by a reversal of the judgment,” etc.

The defendants not served with the notice of appeal in this case are as directly interested in the affirmance or reversal of the order appealed from as are the two defendants who were served.

Millikin v. Houghton

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