Hinkel v. Donohue

California Supreme Court

Hinkel v. Donohue

26 P. 374, 88 Cal. 597, 1891 Cal. LEXIS 742

CourtCalifornia Supreme Court

DecidedApril 15, 1891

DocketNo. 13318

StatusPublished

Cited by4 cases

This text of 26 P. 374 (Hinkel v. Donohue) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hinkel v. Donohue, 26 P. 374, 88 Cal. 597, 1891 Cal. LEXIS 742 (Cal. 1891).

Pincite

Opinion

McFarland, J.

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 a cross-complaint, asking affirmative relief. Thereafter, on motion of plaintiff, the court made an order dismissing the action, [598]*598with 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. 19S.) 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.

Paterson, J., Sharpstein, J., Harrison, J., De Haven, J., Garoutte, J., and Beatty, C. J., concurred.

Free access — add to your briefcase to read the full text and ask questions with AI

McFarland, J.

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 a cross-complaint, asking affirmative relief. Thereafter, on motion of plaintiff, the court made an order dismissing the action, [598]*598with 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. 19S.) 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.

Paterson, J., Sharpstein, J., Harrison, J., De Haven, J., Garoutte, J., and Beatty, C. J., concurred.

Cite This Page — Counsel Stack

Bluebook (online)

26 P. 374, 88 Cal. 597, 1891 Cal. LEXIS 742, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hinkel-v-donohue-cal-1891.

Opinion

Related

Cite This Page — Counsel Stack