Nunan v. Valentine — 83 Cal. 588

Majority

p. 588

[No. 12663.

In Bank.

April 28, 1890.]

MATTHEW NUNAN, Respondent, v. T. B. VALENTINE et al., Appellants.

Headnote

Appeal—Dismissal by Appellant — Satisfaction of Judgment — Bights op Assignees.—When appellants move to dismiss their own appeal, upon the ground that the judgment appealed from has been satisfied, the question cannot be tried in this court whether the judgment has been satisfied in fraud of the rights of assignees of the respondent, who seek to be substituted as respondents in opposition to the motion. The dismissal of the appeal will simply affirm the judgment, and leave the rights of the parties, and the question as to whether it has been satisfied, to the determination of the superior court.

Motion by appellants to dismiss their appeal from a judgment of the Superior Court of the city and county of San Francisco.

The facts are stated in the opinion of the court.

William & George Leviston, for Appellants.

Carl T. Graff, for Respondent.

— In this case the appellants move to

dismiss their own appeal, upon the ground that the judgment appealed from has been satisfied.

The motion is opposed by parties who claim to have succeeded to the rights of the original plaintiff, and who ask to be substituted as respondents, upon the ground that the alleged satisfaction of the judgment was entered in fraud of their rights.

A number of affidavits have been filed relating to this controversy, but we do not think this the proper forum for its determination. A dismissal of the appeal will simply have the effect of affirming the judgment, and remitting the questions as to the persons entitled to enjoy the fruits of it, and as to whether or not it has' been satisfied, to the superior court, where they ought to be tried. We do not decide these questions, but we see no reason to deny the motion.

Appeal dismissed, with costs to respondent.

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