[Civ. No. 511.

First Appellate District.

May 18, 1908.]

#### JOHN HENRY JOSEPH O’ROURKE, a Minor, by FRANK J. O’ROURKE, His Guardian *ad Litem,*Respondent, v. T. J. FINCH, Appellant, and HARRY F. PATRICK and ESTELLE PATRICK, Co-Defendants.

Appeal from Order Denying New Trial — Conditional Order — Reduction of Judgment—Maturity of Appeal—Motion to Dismiss. When the record upon appeal from an order denying a new trial shows that the court had made a conditional order granting the motion, unless plaintiff should consent to reduce the judgment to a specified sum, upon the filing of which consent the motion was denied as stated in the order, and that subsequently to the appeal the court made a *nunc pro tunc*order reducing the judgment as of the date of the order denying the motion for a new trial, a motion to dismiss the appeal on the ground that it was prematurely taken before the judgment had been reduced was properly denied.

Id.—Bight of Appeal.—The defendants, or either of them, had an immediate right of appeal from the order denying a new trial, as soon as it was entered in the minutes of the court.

*264Id.—Service of Notice of Appeal—Adverse Parties.—Upon appeal from an order denying a motion for a new trial made by the defendants, the plaintiff, to whom the motion was directed, is the only adverse party, and upon an appeal by one of the defendants the notice of appeal need not be served upon the other defendants who joined in the motion, and the appeal cannot be dismissed for want of such service.

Id.—Adverse Parties Determined from Eecord.—The appellate court must look only to the record for the purpose of determining the question as to who were adverse parties.

MOTION to dismiss an appeal for an order of the Superior Court of the City and County of San Francisco, denying a new trial. John Hunt, Judge.

The facts are stated in the opinion of the court.

Lynch & Drury, for Appellant.

W. H. Morrissey, for Plaintiff-Respondent.

COOPER, P. J.

The jury returned a verdict in favor of the plaintiff for $1,000 in an action for personal injuries. In due time the defendants, who appeared by the same attorneys, served notice of their intention to move for a new trial, specifying the grounds upon which the motion would be made. On the hearing of the motion, December 2, 1907, the court made an order granting the said motion unless the plaintiff should, within twenty days, consent that the judgment be reduced to $750, in which “event an order will be made denying said motion.”

Within the twenty days plaintiff filed his written consent that the judgment might be reduced to $750, and the court thereupon, on December 12, 1907, made an order “that the motion for a new trial be and the same is hereby denied.” On January 7, 1908, the defendant Finch (appellant herein) duly filed and served upon plaintiff a notice of appeal from the order so made and entered on December 12th, denying the motion. On February 4, 1908, the court made an order, directing that the judgment be reduced according to the prior consent of the plaintiff to $750; that such order be entered *■nunc pro tuno*as of December 12, 1907.

*265Upon the above facts as shown by the record the plaintiff moves to dismiss the appeal upon two grounds.

First. It is claimed that the appeal was prematurely taken, for the reason that at the time the notice of appeal was given the judgment as modified, reducing the original judgment to $750, had not been made or entered.

It is not necessary that it should have been. The order denying the new trial had been made and entered in the minutes of the court, and the defendants, or either of them, had immediately the right to appeal therefrom. (Code Civ. Proc., sec. 939, subd. 3.)

Second. It is further urged that this court has no jurisdiction of the appeal, for the reason that it is by one only of the defendants, and that the notice of ” appeal was not served upon the other defendants—it being claimed that the other defendants were adverse parties.

The statute provides that the notice of appeal must be served upon the adverse parties or their attorneys. The motion for a new trial was made by all the defendants. Its object was to set aside the judgment, and have a retrial of the issues of fact. The plaintiff was the adverse party under such motion. He was the party to whom the motion was directed. We must look to the record, and that alone, for the purpose of determining the question as to who were adverse parties. *(Watson*v. *Sutro,*77 Cal. 609, [20 Pac. 88] ; *In re Ryer,*110 Cal. 557, [42 Pac. 1082]; *Niles*v. *Gonzales et al.,*152 Cal. 90, [92 Pac. 74].)

The motion is therefore denied.

Kerrigan, J., and Hall, J., concurred.