Opinion
Motion to dismiss an appeal from the Superior Court of the city and county of San Francisco.
COUNSEL
Mich. Mullany, William Grant, and W. C. Burnett, for Appellants.
O'Brien, Morrison & Daingerfield, for Respondent.
JUDGES: In Bank. McFarland, J. Paterson, J., Sharpstein, J., Harrison, J., De Haven, J., Garoutte, J., and Beatty, C. J., concurred.
OPINION
McFARLAND, Judge
This is a motion to dismiss an appeal, upon the ground that the necessary parties were not all served with notice of appeal.
The action is, in form, ejectment, and several persons are named in the complaint as defendants. Before either of the defendants had been served with summons or had appeared, plaintiff's attorney filed with the clerk of the court a dismissal of the action. Afterwards, two of the named defendants -- Patrick Donohue and Mary Donohue -- filed an answer, and also [26 P. 375] a cross-complaint, asking affirmative relief. Thereafter, on motion of plaintiff, the court made an order dismissing the action, with costs to defendants. From this order, or judgment, the said defendants Patrick and Mary Donohue appeal.
They did not serve the other defendants with their notice of appeal; and for this reason respondent contends that the appeal should be dismissed.
We do not think that the other defendants were adverse parties within the meaning of section 940 of the Code of Civil Procedure. They would be entirely unaffected by any judgment that might be rendered on appeal. The plaintiff in this action had a clear right to dismiss as to any of the defendants who had not been served, or who had not appeared and set up an adverse claim. None of the authorities cited by respondent cover the case at bar. If, on this appeal, the judgment of dismissal should be reversed as to the defendants who appeal, "it would still stand unreversed as to" either of the other defendants, "and therefore they would not be affected by a reversal." (Randall v. Hunter , 69 Cal. 80. See also Williams v. S.C. M. A ., 66 Cal. 193.) We think, therefore, that this present motion to dismiss the appeal should be denied. But, of course, nothing is determined here that will affect the questions which will arise at the hearing of the appeal.
The motion to dismiss the appeal is denied.