California Pacific Title & Trust Co. v. California Mining & Dredging Syndicate

STURTEVANT, J. The plaintiff sued the defendant to recover on several promissory notes. That action was brought and tried in the Superior Court in San Francisco.

As the latter was a foreign corporation, service was made by attaching certain lands in Humboldt County and pub[354]lishing the summons. The defendant did not appear and on August 31, 1934, judgment by default was entered in favor of the plaintiff. Later execution issued and the property so attached as aforesaid was sold.

About ten months after the judgment was entered certain stockholders commenced an action in partition. That' action was brought in Humboldt County. In that action the trial court made an order appointing Leo Kaufmann receiver of the defendant corporation. Later the trial court made an order discharging the receiver and he appealed therefrom. However, the said order so appealed from was affirmed on August 7, 1936. (Richards v. California Mining & Dredging Syndicate, 7 Cal. (2d) 196 [60 Pac. (2d) 126].)

In the meantime the receiver appeared in the first action and made a motion to vacate the judgment in favor of the plaintiff and to intervene. His motion was denied and he appealed from that order also. The transcript was filed and all briefs were prepared and filed prior to the decision above mentioned by the Supreme Court. Moreover a stipulation was entered into and filed by the terms of which said appeal could be submitted on briefs on file. However, after said decision was filed the plaintiff served and filed a notice of motion to dismiss the appeal or to affirm the judgment. In support of its motion it presented an affidavit. No evidence in opposition was offered by the appellant or otherwise. On the hearing the cause was submitted pursuant to said stipulation and together therewith the plaintiff’s motion was also submitted.

The contention of the plaintiff is that all questions presented by this appeal have, by reason of the decision of the Supreme Court, become moot. It is settled law that “The questions involved in an appeal may become moot and abstract, by reason of some act of the parties, an act of the court, by lapse of time, by act of the legislature, by act of God, and perhaps in other ways ...” (2 Cal. Jur. 125, sec. 13.) And, as said in Hamilton Trust Co. v. Cornucopia Mines Co., 223 Fed. 494, at page 499, Mr. Justice Morrow speaking for the court, “It is a fundamental rule of appellate jurisdiction that every person desiring to appeal from a decree must be interested in the subject-matter of the litigation, and the interest must be immediate