Opinion
Department One
MOTION to dismiss an appeal from an order of the Superior Court of the City and County of San Francisco confirming a sale by an executor. J. V. Coffey, Judge.
COUNSEL:
R. M. F. Soto and Noble Hamilton, for Appellant.
Sidney V. Smith, for Respondent.
OPINION
THE COURT
Motion to dismiss the appeal. The superior court for San Francisco made an order in the above-entitled estate confirming a sale by the executor of certain personal property to H. M. A. Miller, and directing the executor to execute to him an assignment and transfer of the interest of the estate therein. From this order Theresa Bell, one of the heirs of the deceased, has appealed, serving the notice of her appeal upon the executor alone. A motion is now made on behalf of Miller to dismiss the appeal for want of the service of this notice upon him.
The interest of Miller in the confirmation of the sale was adverse to that of the heirs, and, as this interest is shown in the decree itself, it appears by the record that he was an "adverse party," and the notice of appeal should have been served upon him. By the decree of confirmation he became vested with the right to the property purchased by him, upon the payment of the purchase price, and by such payment he has become entitled to a transfer thereof from the estate of the decedent. As a reversal of the decree would deprive him of this right, it was essential that he should be brought before this court before it could have any jurisdiction to make such reversal, or to entertain the appeal. (See Eckstein v. Calderwood , 34 Cal. 658.)
The motion is granted.