Opinion
Rehearing denied.
Appeal from certain portions of an interlocutory decree in partition, rendered in the Superior Court of Santa Clara County.
COUNSEL:
A. W. Crandall, and F. P. Bull, for Appellants.
John Reynolds, S. O. Houghton, and P. B. Tully, for Respondents.
JUDGES: In Bank. Thornton, J., did not participate in the decision. McKinstry, J., dissented.
OPINION
THE COURT
A motion was made to dismiss the appeal herein, which was denied. In deciding the motion, this court said: "So far as appears to us from the transcript, the judgment might be modified, if necessary or proper, without affecting the right of any party not served" with notice of appeal. "If, however, it should appear on the final hearing that the necessary parties are not before the court on this appeal, the appeal will be held ineffectual." (71 Cal. 406.) The cause has since been argued, and upon full examination of the record in the light of the argument, we are of opinion that this court has no jurisdiction to entertain the appeal, for the reason that there can be no just or appropriate modification of the portions of the interlocutory judgment appealed from, without disturbing the whole judgment, and prejudicially affecting the rights of parties not served with notice of this appeal.
Appeal dismissed.