Opinion
S.F. No. 1843.
March 18, 1901.
MOTION to dismiss an appeal from a judgment of the Superior Court of the City and County of San Francisco. J.M. Seawell, Judge.
The facts are stated in the opinion of the court.
T.J. Crowley, for H.I. Kowalsky, Intervener, Appellant.
W.A. Kirkwood, and W.C. Shepard, for Plaintiff Respondent.
W.H.H. Hart, and Aylett R. Cotton, for Respondent Florence Blythe Hinckley.
Motion to dismiss the appeal of the intervener for failure to serve all of the adverse parties.
The plaintiff brought this action to recover from the defendant Kate C. Byrne the amount due upon certain promissory notes executed by her, and that the defendant Florence Blythe Hinckley be directed to pay the said judgment out of certain moneys owing by her to said Byrne. Issues were joined upon this complaint by the defendants Hinckley and Byrne, and a complaint in intervention was filed by the appellant, Kowalsky. Judgment was entered in favor of the plaintiff and against the defendant Hinckley for the amount found due on the notes, and in case he should be unable to collect the same from her, that he recover the same from the defendant Byrne, and that the intervener take nothing by the action. From this judgment the intervener appealed. His appeal, so far as it affects the defendant Byrne, was dismissed, December 31, 1900, upon the ground that he had not served her with the notice of his appeal. (Mohr v. Byrne, 131 Cal. 288.) The defendant Hinckley now moves to dismiss his appeal, upon the ground that the defendant Byrne was an adverse party, and his failure to serve her has taken away the jurisdiciton of this court to hear the appeal.
The "adverse party" who is to be served with the notice of appeal is one whose interest in the subject-matter of the appeal will be affected by the reversal or modification of the judgment or order appealed from. Whether the parties to an action are adverse to each other, is to be determined from the record (Harper v. Hildreth, 99 Cal. 265), and the record herein fails to show that upon the appeal of the intervener the interest of the defendant Byrne is adverse to that of the defendant Hinckley, or that his appeal cannot be determined without affecting her interest. By his complaint in intervention he seeks to have it determined that, as against the plaintiff, he is entitled to a certain interest in one of the notes set forth in the complaint, and upon that issue the court found against his claim. He does not seek relief against any other party to the action, and his controversy with the plaintiff can be determined without the presence of the defendant Byrne. The judgment against him can be reversed or modified without affecting her rights or changing the judgment against her.
The motion is denied.
Garoutte, J., and Van Dyke, J., concurred.