HENRY MILLER et al., Respondents, v. MASSEY THOMAS et al. PABLO DOAK et al., Appellants

[No. 9933. In Bank. September 24, 1887.] HENRY MILLER et al., Respondents, v. MASSEY THOMAS et al. PABLO DOAK et al., Appellants. Appeal — Partition—Notice of Appeal — Service—Dismissal. — An appeal from portions of an interlocutory judgment in an action of partition will be dismissed, if the portions appealed from cannot be modified ■without disturbing the whole judgment and prejudicially affecting the rights of parties not served with notice of the appeal. Appeal from certain portions of an interlocutory decree in partition, rendered in the Superior Court of Santa Clara County. The action was brought for the partition of the Los Animas rancho, situated in Santa Clara County. The appeal was taken from so much of the interlocutory decree as directed the allotment of one sixteenth of the rancho to Henry Miller, and others not named in the notice of appeal. In the decree, specific tracts were allotted to Miller, and other specific tracts were allotted to others. The claim made by the appellants, and denied by the court below, was to a specific part of the land. The respondents moved to dismiss the appeal, on the ground that the notice of appeal was not addressed to or served on all the parties interested therein. The further facts are stated in the opinion of the court. A. W. Crandall, and F. P. Bull, for Appellants. John Reynolds, 8. 0. Houghton, and P. B. Tully, for Respondents. [MAJORITY — The Court.] The Court. — A motion was made to dismiss the appeal herein, which was denied. In deciding the motion, this court said: “ So far as appears to us from the transcript, the judgment might be modified, if necessary or proper, without affecting the right of any party not served ” with notice of appeal. “ If, however, it should appear on the final hearing that the necessary parties are not before the court on this appeal, the appeal will be held ineffectual.” (71 Cal. 406.) The cause has since been argued, and upon full examination of the record in the light of the argument, we are of opinion that this court has no jurisdiction to entertain the appeal, for the reason that there can be no just or appropriate modification of the portions of the interlocutory judgment appealed from, without disturbing the whole judgment, and prejudicially affecting the rights of parties not served with notice of this appeal. Appeal dismissed. Thornton, J., did not participate in the decision. McKinstry, J., dissented. Rehearing denied.