Keegan v. Craig

WILBUR, C. J. This is an appeal from an order confirming the sale of the real estate of the decedent to Martin C. Neuner, purchaser. The purchaser moves for an affirmance of the order confirming the sale upon the ground that appellant’s proposed bill of exceptions was not served upon him as requiréd by the provisions of section 650 of the Code of Civil Procedure and therefore claims that there is no record upon which the appellant can present his appeal and consequently that the order must be affirmed. The purchaser’s contention is based upon the proposition that the purchaser of the real estate to whom the sale is confirmed by the order appealed from is an adverse party to the appellant. It was held by this court in Estate of Bell, 125 Cal. 539 [58 Pac. 153], that the purchaser to whom a sale of real estate was confirmed by the order appealed from was an adverse party required to be served with a notice of appeal. In the Estate of Young, 149 Cal. 173 [85 Pac. 145], it was [496]held that where the bill of exceptions proposed by an appellant was not served upon an adverse party, and where the points relied upon for reversal were shown only by such bill of exceptions that the judgment should be affirmed upon motion of such adverse party.

Upon the authority of these cases and the decisions therein cited it-follows that the judgment should be affirmed, unless by reason of the amendment to section 650 of the Code of Civil Procedure, adopted subsequent to those decisions, and called to our attention by the appellant, the rule in this state upon that subject is changed.

Section 650 of the Code of Civil Procedure was amended in 1911 (Stats. 1911, p. 400) by the addition of the concluding paragraph. As it now stands, this paragraph reads as follows: “No bill of exceptions, notice of appeal, or notice or paper, other than amendments to the pleadings or an amended pleading, need be served upon any party whose default has been duly entered, or who has not appeared in the action or proceeding.” (Stats. 1915, p. 207.)

The appellant claims that this amendment was adopted for the purpose of setting at rest the question as to who was to be served in the preparation of a bill of exceptions and that therefore no adverse party who had not formally appeared in the action need be served with the proposed bill of exceptions, notwithstanding the fact that section 650 still requires that the proposed bill of exceptions be served “upon the adverse party.” .

Appellant also contends that the cases of Elliott v. Superior Court, 144 Cal. 501, 508 [103 Am. St. Rep. 102, 77 Pac. 1109], Estate of Carpenter, 146 Cal. 661 [80 Pac. 1072], Estate of Young, 149 Cal. 173, 176 [85 Pac. 145], and Ford v. Cannon, 5 Cal. App. 185, 187 [89 Pac. 1071], established the proposition, even before the amendment to section 650 of the Code of Civil Procedure, that unless the purchaser had appeared and made himself a party by such appearance, that the bill of exceptions need not be served upon him. In Estate of Bell, supra, however, it was held that where the interest of the purchaser appeared by the decree itself, he was an adverse party upon whom the notice of appeal should have been served. If he was an adverse party within the meaning of the code section requiring the notice of appeal to be served upon him, the same rule would