This is a motion to dismiss an appeal from an order denying a new trial. The grounds of the motion are: First, that the notice of appeal was not served on parties who would be adversely affected by a reversal of the judgment; second, that the notice of motion for a new trial was not served upon all the parties who would have been adversely affected by the granting of the motion.
The second ground of the motion involves the merits of the appeal and an examination of the record, and is therefore not to be considered on a motion to dismiss. It relates to matters arising prior to the order appealed from: Centerville etc. Ditch Co. v. Bachtold, 109 Cal. 111, 41 Pac. 813; In re Ryer’s Estate, 110 Cal. 559, 42 Pac. 1082.
*778The first ground of the motion is answered by an affidavit showing a sufficient service of the notice of appeal as to the parties named in the motion. The objection was that Catherine Stare and John Stare, her husband, had not been served. The record shows that the action concerned the separate property of the wife, and that John Stare never had any interest in the litigatión. He made default, and the judgment does not affect him in any way. It is further shown by certified copy of stipulation of the parties, and by affidavit of appellant’s attorney, that Catherine Stare died pending the motion for new trial, that all parties consented to the substitution of her administrator, and that the notice of appeal was served upon the administrator. The motion is denied.
We concur: McFarland, J.; Harrison, J.; Van Dyke, J.; Henshaw, J.