128 (68 Cal. 638) PACIFIC REPORTER. MATTHEWS v. SUPERIOR COURT OF MARIN COUNTY and others. (No. 11,292.) Filed February 27, 1886. NEW TRIAL-POWER OF JUDGE TO MAKE ORDER OUT OF COUNTY OF TRIAL. The judge who presided in court at the trial of a cause in another county in place of the judge thereof, who was disqualified, has authority to grant an order extending the time to prepare and serve a statement, on motion for a new trial, although such order be made in a county other than that in which the cause was tried. Department 2. Application for writ of review. James F. Smith, for petitioner. Hepburn Wilkins, for respondent. BY THE COURT. Application for a writ of review. The cause of Coughran v. Matthews, the applicant for the writ here, was appealed by Matthews to the superior court of the county of Marin, from a judgment rendered in a justice's court; and the Hon. E. B. MAHON, the judge of the superior court above named, being disqualified to try the cause on appeal, the Hon. J. F. SULLIVAN, a judge of the superior court for the city and county of San Francisco, at the request of Judge MAHON, presided at the trial of the appeal above stated. On this trial a verdict was returned, and judgment was rendered for the plaintiff. Matthews, within the proper time, regularly gave notice of his intention to move for a new trial on various grounds, among which were insufficiency of the evidence to justify the verdict, and errors of law occurring at the trial and excepted to by the defendant. The time for defendant to prepare and serve a statement on motion for new trial was extended, by agreement, until the fourteenth day of May, 1885, after which, by order of Judge SULLIVAN, the time was further extended to the twenty-ninth of the same month, and by another order of the same judge the time was again extended to the thirteenth of June, 1885. It does not appear when the first of these orders was made by Judge SULLIVAN, but the second order shows on its face that it was made at San Francisco. The statement was prepared and served within the time thus extended. To this statement the attorney for plaintiff proposed amendments, reserving at the same time an objection that the statement was not served in time as required by law; and that no extension of the time allowed by law to serve the statement was ever made by the superior court of Marin county, or any judge thereof, and that the extensions granted by order of Judge SULLIVAN were made by him in the city and county of San Francisco, within which city and county Judge SULLIVAN had no power to grant such orders; and that the said judge had no power to make such orders except while he was holding court in Marin county. On motion of plaintiff's attorney the motion for a new trial was, on the twenty-sixth of September, 1885, dismissed. This dismissal was ordered by the court, Judge SULLIVAN presiding. It is argued here that the defendant's motion for a new trial was dismissed on the ground that the orders of Judge SULLIVAN, made in the city and county of San Francisco, extending the time to prepare and serve the statement were without authority; that, therefore, there was no extension of such time made, and the statement was not filed in time. The order dismissing the motion is as follows: "Plaintiff's motion to dismiss defendant's motion for a new trial having been fully considered, and now on this day the court being fully advised, it is ordered that the same be and is hereby granted, and that said motion for a new trial be dismissed." It does not appear, in terms, in the order, on what ground the motion was dismissed, and it is argued from this that we must presume that the motion was granted on some proper ground. But the order refers to "plaintiff's motion," and the only notice of such motion was the one given in his objection and grounds above stated to the statement as not in time, and it is fair and just to presume that the court dismissed it on such grounds. The question then arises, is such an order, made by a judge of another court, who presided at the trial in place of the judge of the court in which the cause is tried, who was disqualified, made without authority, when granted in a county other than that in which the cause is tried? It would be strange if the law did not give power to the judge who tried the cause to make such orders. It would be hard on litigants if when such orders, which are usually made when applied for, are needed, the judge who had tried the cause should be without authority of law to make them unless in the county where the cause had been tried. If such is the law, the judge must leave his own county and visit the county of trial to make the simplest order applied for in the cause. Such order, too, having no relation to the merits, but relating to a mere matter of procedure to put a phase of the cause in a condition to be heard. The judge who tried the cause is the proper judge to settle the statement. Section 659, sub. 3, Code Civil Proc. He can, therefore, take all necessary steps to have it properly settled. For this purpose he can extend the time for its proper preparation for settlement. This power to extend need not be exercised by the judge in court. Sections 166, 176, Code Civil Proc. Such extensions may be made by a judge at chambers. Section 166, Code Civil Proc. Orders made out of court may be made by the judge of the court in any part of the state. Section 1004, Code Civil Proc. The motions referred to in section 1004, just cited, which by it are required to be made in the county or city and county in which the action is pending, in our opinion refer to such motions as must be made and heard in court, and not to ex parte motions which may be made and passed on at chambers. Judge SULLIVAN, as to this power to extend time to prepare and serve a statement, was, in our judgment, invested with the same v.10p.no.2-9 powers as the judge of the court where the cause was pending would have had if not disqualified. He was, as regards the cause he had tried, the judge of the superior court of Marin county, and could make the extension orders granted by him in any part of the state. Under these circumstances the learned judge had no power or jurisdiction to dismiss the motion for a new trial. He was vested with jurisdiction to settle the statement and hear the motion, and he was without jurisdiction to decline to do so. The order dismissing the motion for a new trial must be quashed and annulled, and it is so ordered. (2 Cal. Unrep. 649) CHILDS V. EDMUNDS, Judge, etc. (No. 11,498.) Filed March 9, 1886. PROHIBITION-WRIT OF ASSISTANCE. 1 The enforcement of a writ of assistance, as against one not a party to the action, cannot be restrained by a writ of prohibition, as there is in such case an adequate remedy at law by appeal from the order granting the writ. In bank. Application for writ of prohibition to restrain the enforcement of a writ of assistance, obtained against petitioner for the purpose of dispossessing him, in a foreclosure suit to which he was not a party. E. A. & G. E. Lawrence, for petitioner. J. R. Brandon, for respondent. BY THE COURT. The application for a writ of prohibition in this case is denied for the reason that petitioner has an adequate remedy by appeal from the order complained of. (69 Cal. 80) RANDALL V. HUNTER. (No. 11,237.) Filed March 12, 1886. 1. APPEAL-NOTICE TO ADVERSE PARTY. Under the California Code of Civil Procedure, which required that a notice of appeal must be served on the adverse party, if the reversal or modification of the judgment or order appealed from will affect the interest of a codefendant in the subject-matter of the appeal, he is an adverse party, upon an appeal by another defendant. 2. SAME-SERVICE-DEFAULT JUDGMENT AGAINST CO-DEFENDANT. In an action against partners on a partnership demand, on default by one of the defendants, and judgment after trial against the others, the defendant making the default is not an adverse party to an appeal taken by the other. defendants, so as to require service of notice of appeal on him. Department 2. Appeal from superior court, county of Humboldt. J. D. H. Chamberlain, for appellant. J. J. De Haven and S. M. Buck, for respondent. THORNTON, J. Motion to dismiss appeals. Randall sued Hunter and Gill, as partners, on a promissory note signed Gill & Hunter. Gill made no defense, and judgment passed against him by default. Hunter answered, and denied the execution of the note by Gill & Hunter as partners, and further alleged that the note was executed to plaintiff by Gill without the knowledge or consent of Hunter; that it was not executed for the use and benefit of the firm of Gill & Hunter, but for the individual use and benefit of Gill alone; that the whole consideration for the note passed to the sole use of Gill, and none of it to the firm; that when plaintiff received this note on its execution, and paid to Gill the consideration therefor, he knew all the foregoing facts, and further knew that the firm was not to receive, and did not receive, any portion of the consideration for said note. On this answer, trial was had, which resulted in a verdict against Hunter, and judgment was entered against both defendants,-against Gill on his default, and against Hunter on the verdict. Hunter moved for a new trial, which was denied. He then appealed from the judgment, and from the order denying his motion for a new trial. The notice of appeal was not served on Gill, but on plaintiff only. Plaintiff now moves to dismiss the appeals on the ground of the failure of Hunter to serve the notice of appeal on his co-defendant, Gill. By the provisions of the statute, the notice required to take an appeal must be served on the "adverse party." Code Civil Proc. § 940. If the reversal or modification of the judgment or order appealed from will affect the interest of Gill in the subject-matter of the appeal, he would be an adverse party within the meaning of the section above cited. Senter v. Bernal, 38 Cal. 637; Thompson v. Ellsworth, 1 Barb. Ch. 627; Williams v. Santa Clara M. Co., 5 Pac. Rep. 85. Now, it appears here that Gill has not appealed, and the judgment appealed from was rendered against him by default. If the judgment as to Hunter is reversed, it would still stand unreversed as to Gill, and therefore he would not be affected by a reversal. If the judgment is affirmed, the judgment appealed from would remain unchanged, and manifestly Gill's interest would not be affected by the judgment of affirmance. Whatever modification might be made of the judgment rendered by the court below, or whatever judgment might be here rendered, the judgment by default would still remain against Gill. It is said that if the judgment is reversed another trial might result in a several judgment against Gill, whereas the judgment against him is now a joint judgment,-one against him and Hunter; and that he is interested in preserving the joint judgment against him, and preventing a several judgment as to him. But his default admits that he is bound severally as well as jointly. If on the trial which has taken place a verdict had passed in Hunter's favor, a judgment by default might have been entered against him (Gill) severally. A reversal of the judgment appealed from would not do away with this default. It would only affect the judgment as to Hunter. As long as the default stands, whatever judgment is rendered here would not affect the judgment against Gill. In this view we do not think Gill was an adverse party upon whom the notice of appeal should have been served. |