Hibernia Savings & Loan Society v. Behnke

50 P. 666, 118 Cal. 498, 1897 Cal. LEXIS 803

Opinion

THE COURT.

The appeal herein is taken from an order re¡fusing to set aside a sale by the sheriff under a decree of foreclosure. The respondent has moved to dismiss the appeal for failure to serve the notice upon one claimed by it to he an adverse party. The motion was not made until after the appellant had filed his points and authorities upon the appeal, and the respondent has included the points in support of the motion with its points and authorities upon the appeal. The determination of the motion involves an examination of the entire record, and incidentally of the merits of the appeal, and ought not to be determined in advance of the hearing of the canse-. The motion is, therefore, continued until the hearing upon the appeal.