Ryer v. Ryer

Appeal—Dismissal—Eailure to Serve Adverse Parties on Motion for A New Trial.—Matters occurring prior to the judgment or order appealed from cannot be considered on a motion to dismiss an appeal upon the ground that the appeal has not been perfected; and the failure to serve the adverse party with the notice of intention to move for a new trial, or with the draft of a statement of the case, though it may be a reason for denying the motion for a new trial, or for refusing to settle the statement, or be a ground for affirming or reversing the order appealed from, does not deprive the appellate court of jurisdiction to hear the appeal, or constitute a reason for its dismissal upon the ground that the court has not acquired jurisdiction to hear it.

Id.—Unauthenticated Transcript—Authentication before Hearing of Motion.—Where a motion is made to dismiss an appeal upon the ground that the transcript has not been properly authenticated, if the appellant, prior to the hearing of the motion, files with the clerk of the appellate court a transcript properly authenticated by the clerk of the superior court, the ground of the motion is removed.

Id.—Appeal from Order Denting New Trial—Service of Notice— Adverse Party.—Upon appeal from an order denying a new trial, the parties to the motion in the court below are the only proper parties to the appeal, and the appellant is not required to serve a notice of appeal upon others than those to whom the original notice was directed, and who appear by the record to be adverse parties; and only the record can be examined for the purpose of determining who are such adverse parties.

Id,—Use of Order in Collateral Action—Remote Effect upon Third Parties.—The fact that the judgment or order appealed from may be used as evidence in some collateral action or proceeding, or that its reversal may have a remote or consequential effect to the prejudice of one who is not a party thereto, does not entitle such person to be made a party to the appeal; and no evidence extrinsic to the record to show that the reversal would have such effect can be received or considered on motion to dismiss the appeal.

Id.—Appeal in Probate Proceedings—Judgment-roll.—There is no judgment-roll, strictly speaking, in proceedings in probate, but whenever such proceedings are so akin to a civil action as to necessitate the “papers” which are declared by Section 670 of the Code of Civil Procedure to constitute the judgment-roll in a civil action, they may he held to constitute the judgment-roll referred to in section 661 of the Code of Civil Procedure.

.Id.—Petition of Heir for Share oe Estate—Collateral Inquiry—Notice—Parties.—The petition of an heir for a share of the estate of a deceased person is in the nature of a collateral inquiry, or episode, interjected into the proceedings for the administration of the estate, presenting all the elements of a civil action instituted for the purpose of determining'the right of the applicant to a share of the estate, and, in matters of procedure upon an appeal, should receive the same consideration as upon an appeal in a civil action; and it is only parties to the record who have appeared and resisted the application, upon the service of notice of the application, as required by section 1659 of the Code of Civil Procedure, who will be affected by a reversal of the judgment or order denying a new trial, and persons or corporations who did not resist the application, or place themselves upon the record, or make themselves parties to the proceeding, though they may have a beneficial interest in the estate, are not required to be served with the notice of motion for a new trial, or with the notice of appeal in such proceeding.