169 Cal. 370, S. F. 6798, Fearon v. Fodera

Docket Nº:S. F. 6798.
Citation:169 Cal. 370, 148 P. 200
Opinion Judge:PER CURIAM.
Party Name:FEARON v. FODERA et al.
Attorney:Lilienthal, McKinstry & Raymond, of San Francisco, for appellants. W. H. H. Hart, Devoto, Richardson & Devoto, T. C. Van Ness, Jr., and Ira S. Lillick, all of San Francisco, for respondent.
Case Date:March 18, 1915
Court:Supreme Court of California
 
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Page 370

169 Cal. 370

148 P. 200

FEARON

v.

FODERA et al.

S. F. 6798.

Supreme Court of California.

March 18, 1915

Page 371

In Bank

Appeal from Superior Court, Fresno County; George E. Church, Judge.

Page 372

Lilienthal, McKinstry & Raymond, of San Francisco, for appellants.

W. H. H. Hart, Devoto, Richardson & Devoto, T. C. Van Ness, Jr., and Ira S. Lillick, all of San Francisco, for respondent.

PER CURIAM.

A hearing of the above-entitled cause was ordered before this court. After due consideration, we are satisfied with the opinion and decision of the Court of Appeal for the First District, by Presiding Justice Lennon, which is hereby adopted and made the decision of this court. It is as follows:

In this action the plaintiff sought and recovered a judgment quieting his title to certain lands in the county of Fresno, and awarding him damages as well against certain of the defendants for what in law is known as ‘ slander of title.’ The complaint, in effect, charged that the defendants Antonio Fodera, Rose Fodera, J. J. Rauer, T. C. Tognazzini, and W. D. Shawhan had conspired to unlawfully incumber and cloud the plaintiff's title to the lands in question. In this behalf the complaint alleged substantially that the defendants Antonio Fodera and Rose Fodera, with the knowledge and connivance of all of the defendants mentioned, falsely represented that they had some claim upon the lands of plaintiff; that thereupon the defendants Antonio Fodera, Rose Fodera, and J. J. Rauer prepared what purported to be a deed, signed by the Fodera defendants, as grantors, describing and conveying to the defendants Tognazzini and Shawhan the lands of the plaintiff; that the defendant Rauer thereupon signed and acknowledged the deed mentioned as a witness to the execution thereof; that thereafter the Fodera defendants caused said deed to be recorded in the county of Fresno; and that the same has ever since constituted a cloud upon plaintiff's title to the land described therein. In substance and effect, the complaint further alleged that the purpose of the Fodera defendants in making said deed was to create a lien upon the common interests which the defendants De Long and the M. K. & T. Oil Company might have had in the lands described in the deed, when, in truth and in fact, the Fodera defendants well knew and had notice that the lands described in the deed were the property of the plaintiff,

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and not of the defendants De Long and the M. K. & T. Oil Company; that by reason of said conspiracy the plaintiff was embarrassed in the free use and disposition of his lands, and had been damaged thereby in the sum of $1,000. The complaint also alleged that the defendant Swiss-American Bank, by reason of the deed referred to, claimed some interest in the plaintiff's lands, but that said claim was without any right whatever.

The defendant Rauer defaulted. The remaining defendants, save and except De Long and the M. K. & T. Oil Company, joined issue upon the allegations of the complaint. In addition to denying all of the allegations of the complaint, the defendants Tognazzini and the Swiss-American Bank eventually disclaimed any interest in the plaintiff's lands. The answer of these defendants further averred that at the time of the execution of the deed in question the Fodera defendants were indebted to the bank in the sum of $12,946; that the Fodera defendants represented to Tognazzini, who was at that time the vice president of the bank, that he (Fodera) was the owner of the real property described in the plaintiff's complaint, and that the defendants De Long and the M. K. & T. Oil Company merely held said property in trust; that the Fodera defendants transferred and conveyed said property to the defendants Tognazzini and W. D. Shawhan as additional security for the payment of the Fodera indebtedness to the bank; that Tognazzini, Shawhan, or the bank did not make any search of the records of Fresno county to ascertain the true status of the title to the property in question, but [148 P. 201] relied solely upon the representations made to them by the defendant Antonio Fodera. The answer of the defendants Tognazzini and the bank concluded with the prayer that, if it was found that the Fodera defendants had any interest in the property in question, it be decreed that such interest was subject to a lien by way of first mortgage to the bank.

After the trial commenced the defendants Tognazzini and Swiss-American Bank filed a supplemental answer, unequivocally disclaiming any interest in the plaintiff's lands, and alleging that subsequent to the institution of the action the defendant Tognazzini had executed a quitclaim deed to the Fodera defendants because they had paid their indebtedness to the bank. The defendants M. K. & T. Company and De

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Long by their answer also absolutely and unequivocally disclaimed any interest in the plaintiff's lands.

Upon a trial of the issues thus framed, the lower court made its findings of fact in favor of the plaintiff, and, among other things, found that the Fodera defendants, Rauer, Tognazzini, Shawhan, and the Swiss-American Bank never had any reason or right to claim that the Fodera defendants, De Long, or the M. K. & T. Oil Company had or ever had any right, title, or claim in or to any part of the lands described in the plaintiff's complaint. It was further found that the defendants De Long and M. K. & T. Oil Company never had or claimed any interest in such lands. Thereupon judgment was rendered and entered against the defendants Fodera, Rauer, Shawhan, Tognazzini, and the Swiss-American Bank, wherein it was decreed that the plaintiff have and recover from each of the defendants named the sum of $435, as damages for the alleged slander of plaintiff's title. The judgment declared further that the deed from the defendants Fodera to the defendants Tognazzini and Shawhan was null and void, and that each of the several defendants above named be perpetually enjoined from asserting any claim to the land in controversy adversely to the plaintiff.

The defendants Tognazzini and Swiss-American Bank took an appeal from the judgment, and from an order denying them a new trial. Notice of appeal from the judgment was served upon all of the defendants in the action, save and except De Long and the M. K. & T. Oil Company. Notice of intention to move for a new trial and notice of appeal from the order denying a new trial were served upon the plaintiff, but not upon any of the codefendants. The plaintiff now moves that the appeal from the judgment and from the order denying a new trial be dismissed.

The motion to dismiss the appeal from the judgment is grounded primarily upon the contention that the defaulting defendant Rauer and the disclaiming defendants De Long and M. K. & T. Oil Company were adverse parties, whose interests would necessarily be injuriously affected by a reversal or modification of the judgment rendered and entered against the remaining defendants, and that therefore notice of appeal should have been served upon them in order to confer upon this court jurisdiction of the subject-matter of the action.

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This contention cannot be sustained. Conceding, as counsel for the plaintiff contends, that before this court can take cognizance of an appeal prosecuted and perfected under the old method of appeal notice thereof must be given to all parties to the action, including the nonappealing defendants whose interest in the subject-matter of the appeal may be injuriously affected by a reversal or modification of the judgment or order appealed from, this rule cannot not be successfully invoked in aid of the motion to dismiss in the present case. It is apparent from the record before us that the interests of the particular defendants who were not served with the notice of appeal cannot in any wise be affected by a reversal or modification of the judgment rendered against the appealing defendants. The defendant Rauer has not appealed from the judgment taken and rendered against him by default; and a reversal or modification of the judgment as against the appealing defendants cannot adversely affect the existing rights or interests of Rauer, because in any event the judgment against him will stand as originally entered. In short, a reversal of the judgment appealed from would not nullify the default of the defendant Rauer nor dissolve the judgment rendered against him. Therefore, with respect to the defendant Rauer, it is manifest that he is not an adverse party on whom service of the notice of appeal was...

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