Harper v. Hildreth

Action to Dissolve Partnership—Partial Dismissal—Appeal—Service of Notice—Jurisdiction—Dismissal of Appeal.—In an action to dissolve a partnership and to determine the rights of the parties to certain land claimed by the defendant partner, and alleged to be partnership assets, where other defendants were made parties to the action because of their claim of an interest in the land, and upon their motion the court dismissed the action as against them and as against the lands involved in the action, the failure of the plaintiff, in appealing from the judgment of dismissal, to serve the defendant partner with a notice of appeal, is fatal to the jurisdiction of the appellate court, such defendant being an “ adverse party ” within the meaning of section 910 of the Code of Civil Procedure, and such appeal must be dismissed.

Id. — Meaning of “Adverse Party.”—An “adverse party” within the meaning of section 910 of the Code of Civil Procedure, requiring the notice of appeal to he served on the “adverse party,” is every party whose interest in the subject-matter of the appeal is adverse to or will he affected by the reversal or modification of the judgment or order appealed from.

Id. — Question to be Determined by Relative Position of Parties and Pleadings.— Whether a party to an action is “adverse” to the appellant must he determined by their relative position on the record and the averments in their pleadings, rather than from the manner in which they may manifest their wishes at tlie trial, or from any presumption to be drawn from their relation to each other, or to the subject-matter of the action in matters outside of the action. If his position on the record makes him nominally adverse, he must be so considered for the purpose of an appeal from the judgment thereon.

Id.—Non-appealable Orders.—An order dismissing an action, an order denying leave to file an amended and supplemental complaint, and an order denyii g a motion to introduce evidence, are not appealable orders, and an order refusing to vacate such orders is not appealable.

Id.—Refusal to Vacate Orders. — When an appeal can be taken from an order, a subsequent order denying a motion to vacate that order is not appealable, unless the original order was irregularly issued. If the original order was in itself not appealable, an order refusing to vacate it is not appealable.

Id.—Dismissal of Appeal—Unauthorized Order.—Upon a motion to dismiss an appeal from an order on the ground that it is not an appealable order, the order itself must he examined, and if it is one which was not authorized it does not become appealable by reason of its purporting to do that which the court was not authorized to do.

Id.—New Trial of Motion—Non-appealable Order—Want of Jurisdiction. —The code does not authorize a new trial of a motion; and an appeal from an order denying a new trial of a motion is not an appealable order, and will be dismissed upon the ground that the trial court had no jurisdiction thereof.