Ricketson v. Torres

When a notice of appeal to the Supreme Court is signed by an .attorney of the Court, the presumption is that he had authority to take such action. The fact that an appellant has resided out of the State several years, is no ground for denying him the right to appeal from a judgment rendered against him. It is no proper ground for a motion to dismiss an appeal, that it is sham and frivolous. An appeal is a matter of right, and cannot be defeated because the appeal may be groundless. When a party is made a defendant in an action, and a decree taken against him, from which he appeals, the appeal will not be dismissed because he has no interest in the subject matter of the suit, and ought not to have been made a party. When an appeal is taken from a judgment, and the judgment is reversed by the Supreme Court, with directions to the Court below to enter a judgment in accordance with the opinion, and the Court below renders judgment accordingly, from which a second appeal is taken, the second appeal will not be dismissed, on motion, for said reasons, but they may be good grounds for affirming the judgment. No appeal lies from an order entering a default; and where a default for not answering is entered several years before final judgment, the defendant may still appeal from the final judgment at any time within one year from its rendition, and have the question, whether the default was properly entered or not, adjudicated upon the appeal from the judgment.

Appeal from the District Court of the Seventh Judicial District, Marin County. The principal facts of this case will he found reported in the case of Ricketson v. Richardson (19 Cal. 330). After the reversal of the judgment the case was retried in the Court below, and on the fifth day of March, 1862, a decree was rendered in favor of plaintiff. This decree commences as follows: “This cause having been duly brought on upon the motion of Gregory Yale, attorney for the plaintiff for a decree in pursuance of the opinion and decision of the Supreme Court of the State at the October Term thereof, 1861, as certified in the mandate or remittitur from the said Court heretofore filed in this cause, reversing the decree of this Court in this cause at the July Term, 1861, and directing a decree to be entered up in pursuance of the principles of said opinion and decision, and due notice of said motion having been given and default having been heretofore entered against all the defendants who have not answered, and due proof of filing of notice of the pendency and object of this action in the office of the Recorder of the County of Marin, and of the recording of the same in said Recorder’s office; and it appearing to the Court, from the affidavit of "S. W. Daggett, that there is due to the plaintiff, on the third day of March, 1862, for principal and interest upon the debt and mortgage mentioned and set forth in the complaint, the sum of forty-three thousand eight hundred and forty-five dollars and seventy-one cents ($43,845.71), which sum is to draw and bear interest at the rate of three and one-half per cent, per month from the date hereof until paid.” The decree then directed a sale of the mortgaged property and the application of the proceeds, etc., in the usual form. There was no personal judgment against any of the defendants except Manuel Torres, executor of Richardson. As to the other defendants, the decree barred and foreclosed them from all equity of redemption, and claim of, in, and to the mortgaged premises, and every part thereof, from and after the delivery of the Sheriff’s deed. From this decree the defendant Charles S. Compton alone appealed. Compton had not been served personally with summons, but service was had on him by publication of summons. The notice of appeal was served on the thirteenth day of February, 1863. The foEowing is a copy of the notice of appeal: uIn the District Court of the Seventh Judicial District of the State of California, in and for the County of Marin. “ Barton Ricketson v. W. A. Richardson et als.—You wEl please take notice that Charles S. Compton, one of the defendants in the above entitled action, hereby appeals to the Supreme Court of this State from the decree therein made and entered in the said District Court, on the fifth day of March, a.d. 1862, in favor of said Barton Ricketson against said defendant, and from the whole thereof. “ Dated San Francisco, this twelfth day of February, a.d. 1863. “Hall McAllister, “Attorney for Appellant.” The only averments in the complaint concerning the appeEant Compton were: “ That he had, or claimed to have, some interest in or claim upon the mortgaged premises, which interest or claim was adverse to the plaintiff’s, or subsequent and subject thereto.” The respondent, Ricketson, moved to dismiss the appeal upon the foEowing notice: Supreme Court, State of California. Barton Ricketson, plaintiff, v. William A. Richardson, Manuel Torres, his executor, Samuel Throckmorton, Charles Spencer Compton, Donald Davidson, Benjamin Davidson, William Hood, Robert Walkinshaw, et al. Take notice, that a motion will be made in this Court to dismiss the appeal taken by Charles S. Compton, one of the defendants, on the twelfth day of February last from the decree of the Seventh Judicial District Court, County of Marin, entered on the fifth day of March, 1862, in favor of the plaintiff. And that the grounds of the said motion will be: 1. That the defendant Compton did not take the appeal. 2. That you have no authority to use his name in taking the appeal. 3. That he has been absent from the State some seven or eight years and has left no one with authority to -take such an appeal. 4. That the said appeal is sham and frivolous, and intended to delay the execution of the decree appealed from, and to embarrass the title of the purchaser at the sale under said decree. 5. That the said Compton has no interest in said decree, or to the premises foreclosed by it, immediate or proximate. 6. That the said Compton was an unnecessary party to said foreclosure suit, having no interest in the premises at the commencement of the action on the eighteenth day of February, 1856. 7. That the said Compton, prior to said action, had assigned all the interest which he held as mortgagee of the said Richardson to said defendants Benjamin Davidson, Hood, and Walkinshaw, who were active partners to the said action, and litigated the same. 8. That the said Compton, prior to said action, had conveyed all his right, title, and interest to said premises t'o the said Hood, one of the defendants, an actual party and litigant. 9. That the said Compton and the said Donald Davidson, as copartners and tenants in common, had assigned the mortgages which they held on said rancho prior to the said action, and conveyed all their right, title, and interest to the premises absolutely and unconditionally. 10. That all the claim and interest in and to said mortgaged premises ever held or claimed by the said Compton, or by the said Compton and Davidson, have been in and by said foreclosure action and the decree therein, and by the decree in this Court, fully and finally adjudicated, as represented by their said assigns. 11. That an appeal was prosecuted to this Court by the defendants in said cause from the decree of the March Term, 1861, and that decree reversed, and that of March, 1862, entered as the decree of this Court under the mandate from this Court. 12. That no appeal could be taken from the decree of March, 1862. 13. That an appeal was actually taken by the defendants from said decree of March 5th, 1862, and the decree affirmed in all respects by this Court. 14. That the said Compton, as an individual defendant, cannot now take another appeal from said decree of the fifth of March, 1862, and especially as all the interest which he ever had, or claimed in said mortgaged premises, was fully litigated and adjudicated by his assigns. 15. That on the twenty-fourth day of November, 1857, at a regular term of the District Court of the County of Marin, a default was taken against the said Compton for want of an answer, after due proof of service by publication, and that the said decree of default still remains of record and of force in said Court, and never has been appealed from, and which said default was final as to the said Compton, at that date, and has been ever since. 16. And upon other and divers good and sufficient grounds.