Machado v. Superior Court

WHITE, J. Petitioner seeks a writ of mandate to compel the respondent superior court to settle, allow and certify a transcript to be used on appeal from a judgment rendered in a partition suit.

The action in question was commenced by one Roza Williams against several defendants, including petitioner herein, as owners in common of the real property involved. Also named as defendants were several parties who were alleged to be holders of certain liens upon the interests of some of the defendants in the lands in question. By its final judgment respondent court partitioned tlm real property and al[82]lotted and set apart in severalty to the respective owners their undivided interests therein, subject to the liens heretofore mentioned.

Upon presentation of the reporter’s transcript, the trial judge declined to certify it, for the reasons that the same allegedly contained “but a portion of said proceedings had on the motions to confirm or modify the referees’ report, and does not contain a full or sufficient record to enable a reviewing court to determine if any error were committed”. As a further ground for his refusal to certify the transcript, the judge of respondent court asserts that two of the lien-holders, although real parties in interest, were not given notice as such lienholders of the time and place for the settlement of the transcript on appeal. It appears, however, that the main reason for the refusal of the judge to certify the transcript was because in tailing his appeal petitioner herein, as a defendant in the partition suit, appealed from “a judgment in said action rendered in favor of the plaintiff and against the defendant Domingo Machado”. In other words, the judge of respondent court contends that in a partition action all parties thereto are actors and adverse parties and are affected by a reversal or modification of the judgment, or any part thereof; and that therefore an appeal in such a case must be from the judgment against all the defendants and not from that part of the judgment which concerns the rights in the partitioned property only of the appellant. In this last-mentioned claim the judge of respondent court must be sustained.

Without doubt all persons, both plaintiffs and defendants, in a partition suit are actors as against each other, and each, therefore, is an “adverse party” within the meaning of the law in relation to appeals. The notice of appeal herein is directed to all defendants except the lienholders, and reads in substance as follows: “You and each of you will please take notice that Domingo Machado, one of the defendants in the above-entitled action, hereby appeals to the District Court of Appeal of the State of California. Second Appellate District, from a judgment in said action rendered in favor of the plaintiff and against the defendant Domingo Machado and entered on the 19th day of October, 1940, in judgment book V, page 351 of the records of the Superior Court of the State of California, in and for the