Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1900-02-03
ON PETITION FOT REiIEiEING

ON PETITION FOT REIEtKING
BY Massey, J.
The petition for a rehearing, involving
practically all the questions passed upon
by the court, is both voluminous and eX-
haus,ive. We do not believe it is neces-
sary to review all the matters contained
therein as we satisfied that the rul-
ings IL AIDE are correct, but as it is appar-
ent from the petition that counsel has
mistaken the facts of the record and the
effect of the decision, We will consider
such matters set up in the petition as re-
late to the mistaken facts.
The arguments of counsel with refer
ence to the effect and scope Of the order
denying appellants motion for a new
trial, and the authorities cited in support
thereof, are not pertinent to the question
presented in the record and decided by
the court. We were not required by the
record to determine whether the Dun
phys. co-defendants of the appellants,
had abandoned their motion for a new
trial, and we did not so decide. Neither
was 1t necessary to even consider wheth
er the record presented such question.
The record shows that the appellants and
their co-defendants, the Dunphvs, inter
posed separate motions for a new trial
based upon a joint statement of all the
moving parties and that the order of the
court for some reason not developed by
the record denied the motion of the APP
pellants. and did not deny the motion of
the nunphys. To hold that the motion
~f ba I'M haH NV 10
order would require the Interpolation OF
words not in the order, or that the Ian
guage used in the order be given mean
ing not authorized by any rule Of CON
struction. Cencede. for the purpose OF
the argument, that the Ian - ge used in
the order would warrant the court in
holding as counsel claim then is respon-
dent confronted with the fact that the
Dun, hys have appealed therefrom upon
the same record, seeking the same relie
as was asked by the appellants. They
are alike interested in the reversal of the
order upon the same record. Their in
tereSts are identical and do not contlc
and are not in any sense of the wsrd ad
verse within the meaning of our statute
Taking the records as it stands, thu
law clearly supp. - the decision of th'
court. The Supreme Court of Calitorni;
has held, that the notice of appeal from
an order denying a motion for a new
trial need only be served upon the par
ties to the motion IN tie court Jelotr.
Watson VS.. Sutre, - Cal. 600
The same court has held that even o.
an appeal by one judgment defendan
from judgment perpetually enjoininl
the continuance of the tre~pass, and TO
damages, motion to dismiss the appea
based upon the fact that the notice of APP
peal had not been served upon co-defen
dant~ and parties to the jndgmen
should not be sustained. the co-defc.
dar-- not being adverse parties With
the aeaning OF the statute.
jackson VS.. Brown, 81 Cal. 81.
Under the showing in the record w
are unable to perceive how or in WIN
manner the ai1irnlance OF reversal of tn
ordc- appealed from can affect the iEte
ests of the Dunphys in this controvers.
1t Will not enlarge their liabilities or il
crease their burdens under the deere
neither will it change their rights uhde
the pleadings and issues.
The claim that the notice of appe;
should have been served upon the d
Pendants as to whom the action was dis
missed is equally vulnerable. The
were dismissed upon motion by order
the court at The time the decision W.
rendered over the objection of the appe
lants. Counsel assumes in his argumel
that il, the action of the court dismissir
these defendants no other persons tha
the dismissed defendants could
affected in their rights. They a
not rarties to the decision al
Judgment of the coart, Their int
ests are not deterus.; cd by the d
cision and judgment ii the court or |
the oder of the court denying the a
pellants' motion for new trial. The G
der denying the motion for new trl
and the Judgment do not affect or chan
their rights or interests in any manna
If their interests can at all be affected,
will be only after they have been pro
erly brought into court and after hes
ing had. Under statute in Indiana I
quiring that upon an appeal by ono