Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1900-02-03
I'M the State of Kansas under statute

In the State of Kansas under statute
requiring service upon the adverse"
party, it has been held to the same effect
The Supreme Court Of oklahoma, under |
a code Of civil procedure copied from the !
code of Kansas, has held to the same eff
feet, and an exhaustive review Of the rule ,
prevailing in Kansas, ara n that Terri
tory, will be found in the opinion of that
court in the Board Of Commissioners
Logan County VS.. Harvey, 40 Pac. 1905.
In addition to what has already been
said we cannot understand by what rule
of practice, statutory or otherwise, pre-
vailing in this State, it could be success
fully claimed or maintained that the SER
vice of the notice Of intention to move
for new trial. or the service of the notice
of appeal upon person not party to
the judgment and the action at the time
| Of such service would confer jurisdiction
upon the trial or appellate court over
such person SO as to enable either to de-
termine any matter presented by the
motion for new trial, or in any manner
make any order or judgment affecting
the rights of such person by which he
would be bound. Neither are we able to
understand as applying to the further
claim of the respondent in his petition,
! under what rule of law prevailing in this
State could it be maintained that the re-
versal Of the order denying the motion
for a new trial would operate to restore
parties to the action who are not parties
to the judgment, and who We're not par
ties to the action at the time the motion
} W, interposed and the order denied.
: either do we know of any rule of law
prevailing in this State that would COM
pei person not party to an action or
Judgment, to come into the trial court
and be heard under such service of notice
of motion or notice of appeal, or on fail
ure so to do. bar him of a hearing to
l the matters determined in the case.
: These defendants dismissed by the
D action Of the court, before Judgment, and
: before Il motion for a new trial was in
!, terpo>ed, are much strangers to the
' record as they would be had they never
r been served.
: 1t is further claimed in the petition
. that the failure of the appellants to serve
the DunphyS. their co-defendaNts, with
: notice Of intention to move for new
/ trial warrants this court in dismissing
e the appeal. This question is not new sc
e far as this court is concerned. and has
y been directly passed upon hy the SUI
= prcme Court Of California. T. Watson
# vs.. SutrO. Sttpr0, it was held N effect
that if the notice of intention 10 move
9 for a new trial-was not served on all the
II proper parties the matter is one for con
l. sideration on the hearing of the appea
: and is not ground for dismissal Con
l. ceding for the argument, that the Dun
If phys should have been served with ;
II notice of intention to move for new
n trial, the respondent cannot complain Q
l. such failure, nor can the Dunphys, "a
lie they waived such service by joining il
n the statement on motion for a new trial
eff That such service could be waived o
" the notice itself waived. is amply sup
,e ported 10y authority.
n Dominguez VS.. Mascotti. a Cal
ct PA.
4 Beck VS.. Thompson, - New. 100
e. The further claim that it appearing
re that the order of dismissal having beel
,e consented to by some of the defendant
ia is binding on those Directing thereto
m they not having appealed therefron
" within the statutory time. 1t is not nee
y esSary to discuss the question whethe
or not the order of dismissal is appea
able under cur statute. The order wa
N made upon motion before judgmen
nt The appeal is not from the judgment an
,o the order of Dismissal The cases cite
or in support of respondents contentio
al contain. we presume, the correct rule
~ law to he applied in proper case, b,
~ there is plain and clear distinction b,
nt tween the cases cited and the case at ba