Terry v. Superior Court

California Supreme Court Nov 14, 1895 No. L. A. No. 127Published

AI Brief

AI-generated · verify before citing

Holding. The court held that the superior court properly retained jurisdiction over an appeal where the appellants failed to serve notice on co-defendants who were not "adverse parties" to the judgment. The husbands of the appellants were not adverse parties because the judgment was rendered solely against the wives' separate property, and the non-served defendants were not parties to the judgment.

Issues

Whether the superior court erred in denying a motion to dismiss an appeal for failure to serve notice on all co-defendants.
Whether the husbands of the appellants were "adverse parties" requiring service of notice of appeal under the circumstances of the case.

Disposition. denied

Quotations verified verbatim against the opinion

“The decision of the court upon the motion, by which ruling it retained the appeal, was not erroneous.”

“Adverse parties are those who, by the record, appear to be interested in the judgment, so that they will be affected by its reversal or modification.”

“It was therefore not necessary that the husbands should have been served with notice of appeal as “adverse parties,” and this is all the superior court was called upon to decide in passing upon the motion to dismiss.”

Synopsis

Action against Married Women—Assumpsit—Statutory Obligation —Pleading—Judgment.—An action against married women upon a contract for services. rendered by undertakers in the burial of their father at their instance and request is an action of assumpsit to enforce a voluntary agreement, and not to enforce a statutory obligation against the wives under section 292 of the Penal Code, if no facts are stated in the complaint respecting such statutory obligation; and the judgment in such action can bind only the wives and their separate property.

Id.—Justice’s Court—Rules of Pleading—Proofs—Judgment.—However liberal the rules of pleading may be in a justice’s court, the complaint must state the cause of action relied upon, and in that, as in every court, the allegations and proofs must correspond, and the judgment must be upon the demand and within the pleadings.

Id.— Justice’s Court — Husbands as Parties — Appeal — Service of Notice—Jurisdiction of Superior Court.—In an action in the justice’s court to enforce an assumpsit for services rendered at the special instance and request of married women, where the judgment rendered is not in terms against their husbands or the community property, but, in contemplation of the pleadings, is a judgment whose satisfaction can only be had from the separate property of the wives, the husbands are not parties adverse to their wives upon an appeal taken by the wives to the superior court; and the notice of appeal need not be served upon them as adverse parties in order to give jurisdiction to the superior court of the appeal, and its jurisdiction to determine the appeal cannot be restrained by writ of prohibition for want of such service.

The Court. This is an application for a writ of prohibition to restrain the superior court of San Diego county from hearing an appeal from the justice’s court of San Diego township.

An action was brought in the justice’s court of San Diego township by George W. Terry, petitioner herein, as plaintiff, against W. H. Dinwiddie and Harriet M. Dinwiddie, his wife, Robert Daly and Rebecca A. Daly, his wife, Visa J. Cline, Charles Morris, and Josephine Morris, his wife. No service of summons was had upon the defendants Morris and Cline, nor did they appear. The Dinwiddies and Dalys were served with summons and answered.

The action was upon a claim of Johnson & Co., undertakers, assigned to plaintiff, and was for services rendered by said undertakers in the burial of C. Breedlove, father of the women defendants, and of C. W. Breed-love, their brother, at their instance and request. Their husbands were joined as party defendants under the provisions of the code.

, The judgment given in the justice’s court was in favor t)f plaintiff, against defendants Harriet M. Didwiddie and Rebecca A. Daly. No judgment in terms was asked or given against their husbands, or either of them.

From this judgment the defendants Harriet M. Din[87]widdie and Rebecca A. Daly gave notice of appeal to. the superior court. The cause being transferred to that forum, a motion was there made by plaintiff (petitioner herein) to dismiss the appeal, upon the ground that the superior court had no jurisdiction to entertain the same, for that the notice of appeal had not been served upon defendants W. H. Dinwiddie, Robert Daly, Charles and Josephine Morris, and Visa J. Cline.

The motion was decided adversely to plaintiff, and, the court retaining said appeal, this writ is sought to restrain it from proceeding further in the matter.

The superior court, in passing upon the motion, was not called upon to decide any controverted question of fact. The undisputed facts were that plaintiff was served with notice of appeal, and that the defendants Morris, Cline, W. H. Dinwiddie, and Robert Daly were not. The duty devolving upon the court was to determine, from the record upon appeal, whether the defendants not served, or any of them, were adverse parties to the appellants. (Harper v. Hildreth, 99 Cal. 265.)

The decision of the court upon the motion, by which ruling it retained the appeal, was not erroneous.

Terry v. Superior Court

AI Brief

Synopsis

More from California Supreme Court

Related research

AI Brief