Miller v. Richards — 83 Cal. 563

Majority

p. 563

[No. 13771.

In Bank.

April 17, 1890.]

A. H. MILLER, Respondent, v. C. J. RICHARDS, Appellant.

Headnote

Appeal — Dismissal — Service of Notice on Intervenor — Foreclosure of Mortgage — Vacation of Deoree — Intervention of Purchaser. •— When after the foreclosure of a mortgage, and a sale under the decree, the decree is vacated, on motion of the plaintiff, to allow a grantee of the mortgagor to be made a party defendant, and the purchaser at the foreclosure sale also intervenes by leave of court, the defendant, upon appealing from the order vacating the decree, must serve the notice of appeal upon the intervenor, and the appeal will be dismissed for want of such service.

Motion to dismiss an appeal from an order of the Superior Court of Los Angeles County vacating a decree of foreclosure.

The facts are stated in the opinion of the court.

Dorner & Burdett, for Respondent,

Scarborough & Waterman, and G. G. Stephens, for Appellant.

J.— This is a motion by intervenor to dismiss the defendant’s appeal, upon the ground that the notice of appeal was not served upon him.

The facts are, that plaintiff obtained a decree of foreclosure upon a mortgage made by defendant, and the mortgaged premises were sold under the decree, plaintiff being the purchaser. The certificate of sale was assigned by plaintiff to the intervenor.

Before expiration of the time for redemption, it was discovered that the decree of foreclosure was ineffectual, by reason of the fact that a grantee of the mortgagor had not been made party to the suit. Thereupon the court, on motion of plaintiff, vacated the decree and sale, for the purpose of allowing an amendment to the complaint, making the grantee of the mortgagor a party defendant.

p. 564

After this order was made, the intervenor was allowed to file his complaint In intervention. After notice of the intervention, defendant attempted to appeal from the order vacating the decree and sale, but he served his notice on the plaintiff only, omitting to serve the intervenor.

We think the motion to dismiss should be granted." From the time of filing his complaint, the intervenor became a party to the action, and his interests would be directly and adversely affected by a reversal of the order appealed from. It was therefore necessary to serve the notice of appeal on him, in order to give this ctmrt jurisdiction. (Code Civ. Proc., secs. 938, 940, and notes to Deering’s edition.)

Appeal dismissed.

Fox, J., Sharpstein, J., and McFarland, J., concurred.