[No. 15017. Department Two.-June 12, 1894.] J. R. LANCASTER ET AL., RESPONDENTS, v. THOMAS MAXWELL, DEFENDANT, C. B. GREGORY, APPEL LANT. APPEAL SERVICE OF NOTICE-ADVERSE PARTIES-DISMISSAL.-A notice of appeal must be served on every adver party interested in the judgment, and who would be affected by its reversal, and if not co served, the appeal must be dismissed. ID. FORECLOSURE OF MECHANIC'S LIENS-PARTIES-APPEAL BY OWNERCONTRACTOR AN ADVERSE PARTY.-In an action to foreclose mechanics' liens, where judgment was rendered for the sale of the property, and that a judgment for the deficiency be docketed against the contractor, if the owner of the building appeals from the judgment, the contractor is adverse party, who would be affect by its reversal, an. must be rved with the notice c appeal. APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a motion to set aside a default. The facts are stated in the opinion of the court. Wickliffe Matthews, and A. D. Lemon, for Appellant. Ash & Mathews, for Respondent. MCFARLAND, J.-This is an action to foreclose certain mechanics' liens. Defendant Gregory is the owner of the buildings involved, and defendant Maxwell was the original contractor. Both defendants suffered default. The liens sued on grew out of labor and materials done for and furnished to the contractor Maxwell. By the judgment it was decreed that the land, buildings, etc.. of Gregory be sold and the proceeds appropriated to the payment of the amounts found due upon the liens, and that if such proceeds should not be sufficient to pay all the liens "the deficiency thereof shall be docketed as a personal judgment against said defendant Thomas Maxwell." The defendant Gregory appeals from the judgment, and also from an order denying her motion to set aside her default made upon the grounds of sur prise, excusable neglect, etc. The notice of appeal was not directed to, nor served upon, the codefendant Maxwell, and for that reason respondents move to dismiss the appeal. The court did not abuse its discretion in refusing to set aside the default; and while we have looked through the transcript and briefs, and see no reason why the judgment should, under any view, be reversed, it is not necessary to discuss the other points suggested, because we think that the appeal should be dismissed. A notice of appeal must be served on every "adverse party" (Code Civ. Proc., sec. 940), and adverse parties are those who are "interested in the judgment and would be affected by its reversal." (O'Kane v. Daly, 63 Cal. 319.) "Every party whose interest in the subject matter of the appeal is adverse to, or will be affected by, the reversal or modification of the judgment or order from which the appeal has been taken, is, we think, an 'adverse party' within the meaning of these provisions of the code, irrespective of the question whether he appears upon the face of the record in the attitude of plaintiff or defendant or intervener." (Senter v. De Bernal, 38 Cal. 637.) And it is quite clear that in the case at bar the interest of Maxwell would be "affected by the reversal" of the judgment. Appellant seeks particularly a reversal of that part of the judgment which decrees her property to be sold to satisfy the liens, and it is apparent that such reversal would be adverse to the interest of Maxwell. The appeal is dismissed. DE HAVEN, J., and FITZGERALD, J., concurred. Hearing in Bank denied. [No. 15290. Department Two.-June 1, 1894.] THE CITY AND COUNTY OF SAN FRANCISCO, RESPONDENT, v. CHARLES E. ANDERSON, AP PELLANT. TAXATION-SEAT IN STOCK AND EXCHANGE BOARD.-A seat in the San Francisco Stock and Exchange Board is not taxable property. ID. DOUBLE TAXATION.-An attempt to tax such seat, in addition to the taxes levied upon 'l the property of the stock board and corporation, is void as an attempt at double taxation. APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. The facts are stated in the opinion of the court. Jarboe & Jarboe, and Edward R. Taylor, for Appellant. The seat in the stock exchange is a mere personal privilege, and not property in the true sense of the term. Furthermore all the property owned by the exchange has been assessed and the taxes thereon paid, and a further assessment of the right of membership therein would be double taxation. (Scotland Co. v. Missoui etc. R. R. Co., 65 Mo. 123, 134. See Burke v. Badlam, 57 Cal. 594.) J. E. O'Donnell, and H. Jones, for Respondents. A seat in the stock exchange is property. (Clute v. Loveland, 68 Cal. 254; Habenicht v. Lissak, 78 Cal. 351; 12 Am. St. Rep. 63; Hyde v. Woods, 94 U. S. 523; Londheim v. White, 67 How. Pr. 467; Grocers' Bank v. Murphy, 60 How. Pr. 426; United States v. Ancarola, 9 Rep. 303; 1 Fed. Rep. 676; Powell v. Waldron, 89 N. Y. 328; 42 Am. Rep. 301.) The meaning of the term "property" for the purpose of taxation is defined as "moneys and all other matters and things real, personal, and mixed, capable of private ownership." (Pol. Code, sec. 3617, 1st subd.) The term "personal property" includes every thing which is the subject of ownership not included within the meaning of the term "real estate." (Pol. Code, sec. 361, 4th subd., 3617; Const., art. XIII, sec. 1.) If, as has been conclusively shown, the "seat" in question is "property," all property being assessable under our statutes (Pol. Code, sec. 3607), the assessment in question is valid. MCFARLAND, J.-The only question in this case is whether or not a "seat in the San Francisco Stock and Exchange Board" is taxable property, and in our opinion it is not. What such a "seat" is sufficiently appears in the opinion of this court in Lowenberg v. Greenebaum, 99 Cal. 162; 37 Am. St. Rep. 42. In that case we held that a seat in said board, being merely "a personal privilege of being and remaining a member of a voluntary association with the assent of the associates," was not property that would pass by a sale under a common writ of execution; and following the views there expressed we hold that it has no such qualities as make it assessable and taxable as property. It is a mere right to belong to a certain association with the latter's consent, and to enjoy certain personal privileges and advantages which flow from membership of such association. Those privileges and advantages cannot be transferred without the consent of the association, and a forced sale of them would not give to the purchaser the right to occupy said seat." It is too impalpable to go into any category of taxable property. Respondent cites Clute v Loveland, 68 Cal. 254, but that case went upon the theory that the "seat" of a member of the said stock board represented his interest in the property of said board and in the property of a certain corporation called the Company of Associated Stockholders with which said stock board had certain relations. Now, the alleged taxes for which this suit was brought were for the fiscal year 1889, and the stipulated facts show that for said year "all the real and personal property owned by, or in the possession, or under the control" of, said San Francisco Stock and Exchange Board and of said Company of Associated Stockholders were duly assessed to said board and said company, and that all taxes levied to pay the assessments were by said board and said company fully paid. Therefore, under the theory of the said case invoked by respondent, the attempt to tax said "seat" in addition to the taxes levied upon all the property of said stock board and said corporation was clearly an attempt at double taxation, and void within the principle of the case of Burke v. Badlam, 57 Cal. 594. The judgment and order denying appellant's motion for a new trial are reversed. DE HAVEN, J., and FITZGERALD, J., concurred. [No. 15092. Department One.-June 13, 1894.] MICHAEL CASTLE ET AL., APPELLANTS, v. JOHN C. SIEGFRIED ET AL., RESPONDENTS. TRADEMARK-TEA LABELS-RESEMBLANCE NOT CALCULATED TO DECEIVE.— There can be no exclusive right to put up and sell tea in packages of y particular form or size, or to designate the package by any partic ular arrangement of words which indicate no more than the name, or amount or quality of the tea, or the place where it is produced sold; and where it appears that a cross in the shape of the letter X was in common use amongst tea importers, and that persons wishing to buy tea was governed by the initials placed within such cross, or by the name of the importers stamped upon the package, and that the different colored letters on the labels had no significance with tuose purchasing tea, and that no person had been, or was likely to be, deceived by any resemblance between the packages of tea sold by the efendants and those sold by the plaintiffs, a judgment rendered in favor of the defendants dismissing a complaint for infringement of the plaintiffs' trademark will not be disturbe upon appeal. APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. The facts are stated in the opinion of the court. Galpin & Zeigler, for Appellants. Mastick, Belcher & Mastick, for Respondents. |