Hinkel v. Donohue
Before: McFarland
Synopsis
Ejectment — Dismissal. — The plaintiff in an action of ejectment has a right to dismiss the action as to any of the defendants who have not been served with summons, or who have not appeared and set up an adverse claim.
Id.—Appeal — Service of Notice—Co-defendants not Appealing — Adverse Parties. — Where, in an action of ejectment against several defendants, the plaintiff filed a dismissal of the action before the service of summons or appearance of any of the defendants, and afterwards two of the defendants filed an answer and cross-complaint, asking affirmative relief, and thereafter, upon motion of the plaintiff, the action was dismissed by the court, from which judgment of dismissal the cross-complainants appeal, the other defendants not appealing are not adverse parties within the meaning of section 940 of the Code of Civil Procedure, and the notice of appeal need not be served upon them.
McFarland, J. This is a motion to dismiss an appeal, upon the ground that the necessary parties were not all served with notice of appeal.
The action is, in form, ejectment, and several persons are named in the complaint as defendants. Before either of the defendants had been served with summons or had appeared, plaintiff’s attorney filed with the clerk of the court a dismissal of the action. Afterwards, two of the named defendants — Patrick Donohue and Mary Donohue — filed an answer, and also a cross-complaint, asking affirmative relief. Thereafter, on motion of plaintiff, the court made an order dismissing the action, [598]with costs to defendants. From this order, or judgment, the said defendants Patrick and Mary Donohue appeal.
They did not serve the other defendants with their notice of appeal; and for this reason respondent contends that the appeal should be dismissed.
We do not think that the other defendants were adverse parties within the meaning of section 940 of the Code of Civil Procedure. They would be entirely unaffected by any judgment that might be rendered on appeal. The plaintiff in this action had a clear right to dismiss as to any of the defendants who had not been served, or who had not appeared and set up an adverse claim. None of the authorities cited by respondent cover the case at bar. If, on this appeal, the judgment of dismissal should be reversed as to the defendants who appeal, “ it would still stand unreversed as to ” either of the other defendants, “ and therefore they would not be affected by a reversal.,, (Randall v. Hunter, 69 Cal. 80. See also Williams v. S. C. M. A., 66 Cal. 19S.) We think, therefore, that this present motion to dismiss the appeal should be denied. But, of course, nothing is determined here that will affect the questions which will arise at the hearing of the appeal.
The motion to dismiss the appeal is denied.
Paterson, J., Sharpstein, J., Harrison, J., De Haven, J., Garoutte, J., and Beatty, C. J., concurred.
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