The appeals in the above-entitled case are from the judgment and from the order denying appellants' motion for a new trial. Respondents move to dismiss the appeals, the first upon the ground that Sandman, a defaulting defendant, was not served with notice of the appeal and is an adverse party whose rights will be injuriously affected by a reversal or modification of the judgment; the second upon the ground that the case was tried upon an agreed statement of facts, with a stipulation waiving findings, and that, as a motion for a new trial is a request to the court to re-examine an issue of fact, since here the facts are stipulated, an appeal from the court's order refusing to do so is a vain and useless thing.
As to the appeal from the judgment it is sufficient to say that the determination of the question whether or not defendant Sandman is an adverse party who should have been served, and whether or not, as between the appellants and the respondents actually served, a judgment could be rendered without affecting the rights of Sandman, necessitates an examination of the record. In accordance with the practice *Page 367 of this court in such cases, that examination will not be made in advance of the hearing upon the merits, but may be urged at the time of such hearing. (Hibernia S. and L. Soc. v. Behnke,118 Cal. 498, [50 P. 666]; Kenney v. Parks, 120 Cal. 24, [52 P. 40].) It is ordered, therefore, that the motion to dismiss the appeal from the judgment stand over, to be renewed, heard, and decided when the case is presented upon its merits.
As to the motion to dismiss the appeal from the order of the court refusing to grant a new trial, it is manifest that the trial court had jurisdiction to entertain the motion for a new trial, and by appeal from its order this court has acquired jurisdiction to review the action of the trial court. Under these circumstances a motion to dismiss does not lie. If it shall prove, as respondents argue, that the appeal is a vain and useless thing, the result will be an affirmance of the order of the trial court. The appeal having been properly taken, and jurisdiction by this court having been acquired, we will not look into the record to determine the merits of respondents' contention. If it shall appear that the appeal was frivolous and taken merely for vexation and delay, a respondent's right in such a case will always be adequately protected by the imposition of a penalty. The motion to dismiss the appeal from the order refusing to grant a new trial is therefore denied.
Sloss, J., Shaw, J., and Angellotti, J., concurred.