BARTON RICKETSON v. MANUEL TORRES, Executor of Wm. A. Richardson, deceased, SAMUEL R. THROCKMORTON, CHARLES SPENCER COMPTON, DONALD DAVIDSON, BENJAMIN DAVIDSON, WILLIAM HOOD, J. MORA MOSS, CHARLES MEYER, WILLIAM BENNETT, ALEXANDER MATTHISON, DAVID JARDINE, JOSEPH JARDINE, ALEXANDER G. DALLAS, ALEXANDER C. MACLANE, WALKER COMSTOCK, 23 Cal. 636

Crocker, J. delivered the opinion of the Court—Norton, J. concurring. In this case one of the defendants, Charles S. Compton, is the sole appellant. The defendant moves to dismiss the appeal on various grounds. The case has been once before this Court, on an appeal taken by the plaintiff, and the decree was reversed, and the cause was remanded for a decree in pursuance of the principles of the opinion of the Court. (19 Cal. 330.) Upon the return of the case, the Court below entered a decree, purporting to be in accordance with the opinion, from which the defendant Compton appeals.

It is contended, on the motion to dismiss, that the defendant Compton did not take the appeal; that there was no authority for using his name in taking it; and that he has been absent from the State seven or eight years. The appellant did not enter any appearance during the pendency of the suit; but a judgment was rendered against him by default. The notice of appeal is signed by an attorney of the Court, who it is presumed had authority to take such action.

The affidavit of Macpherson, the attorney in fact of the appellant, shows that the appeal was fully authorized by him, acting as attorney in fact, under a sufficient power. The fact that the appellant has resided out of the State for several years, is no ground for denying him the right to appeal from a judgment rendered against him. The next ground for the motion is, that the appeal is sham and frivolous, intended to delay the execution of the decree, and to embarrass the title of any purchaser at a sale under it.

It is no proper ground for a motion to dismiss an appeal, that it is sham and frivolous—though it may be a good reason for a speedy submission and decision of the appeal. An appeal is a matter of right, and that right cannot be defeated because the appeal may be groundless. The remedy of the respondent, in such cases, is by an award of damages by this Court, under Sec. 345 of the Practice Act. (Dey v. Walton, 2 Hill, 405.) An examination of the record shows, that the appeal cannot be justly termed sham or frivolous.

It is further urged in support of the motion, that the appellant has no interest in the decree, or in the subject matter of the controversy; that he was an unnecessary party; that prior to the commencement of the action he had assigned all the interest he ever had in the matter, to others of the defendants. If such be the case, that he has no interest, and ought not to have been made a party, it is the fault of the respondents that he was a party, and affords no proper ground for this motion.

If he ought not to have been made a party, the plaintiff ought not to have made him a party, and he should have dismissed the case as to him. But the plaintiff cannot hold a judgment against him, and at the same time deny him the right to appeal from that judgment. By admitting that the appellant had no interest in the subject matter, and that he ought not to have been a party, the respondent virtually admits that he is not entitled to any judgment against him, which would of itself form a good ground for the appeal.

The respondent also contends, that the appeal to this Court, in which the Court below was directed to enter a decree in accordance with the opinion of this Court, was taken by the defendants; that no appeal could be taken from the decree thus entered by the order of this Court; that an appeal was taken by the defendants from such decree, on which the decree was affirmed; and that this defendant cannot, therefore, take this appeal.

These facts, if true, may form good grounds for affirming the judgment of the Court below—but they are no proper basis for a, motion to dismiss the appeal All these questions are proper to be considered in adjudicating the questions raised by the appeal; but cannot properly be brought before us in this mode. It is also urged, that a default was duly entered against this defendant, in 1857 ; and that no appeal was ever taken from that default ;• and that, therefore, no appeal lies from the final judgment.

We are not aware that any appeal lies from an order entering a default against a party; but even if the statute provided for such an appeal, the defendant, by failing to take such an appeal, does not lose or waive his right of appeal from the final judgment. Whether that default was properly entered, or not, is a question which he has a right to have adjudicated upon an appeal from the final judgment. These are all the grounds of the motion -to dismiss ; and none of them being sufficient, the motion to dismiss is overruled.

Ho briefs being on file upon the merits of the appeal, we do not pass upon it, but reserve it for future consideration.