Ouzoonian

This is a motion to dismiss the appeal herein. The action was one for the quieting of the title to certain real property situated in Fresno County as against the defendants and also for the recovery of certain personal property. The complaint also asks for the appointment of a receiver to take charge of said real and personal property. The court appointed a receiver, and the latter, by virtue of the authority vested in him by the court, took possession of the real property and also certain personal property. The action grows out of a certain contract whereby the plaintiffs and the defendants agreed to exchange and sell to each other certain real and personal property. The agreement, among other things, provided that, immediately upon its execution, the defendants were to take possession of the premises exchanged or sold to them by the plaintiffs, and the complaint alleges that the defendants did take such possession. The agreement further provided that, in case of the violation by the defendants of certain of the covenants or conditions thereof, the plaintiffs should be at liberty to declare the agreement forfeited and that all payments theretofore made should be treated as…

Counsel for the intervener-appellant prefaces his petition for a rehearing of the above-entitled cause with the statement that this court, in its judgment dismissing the appeal herein, evidently went off on an erroneous understanding of “the matters contained in the record on appeal.” We had no misunderstanding of what the record contained. Indeed, counsel for the intervener himself stated in his affidavit resisting the motion to dismiss, that he had “read the affidavit of M. F. McCormick and that the same is true.” Said affidavit was filed in support of the motion to dismiss and if the facts1 therein stated are true, then there was no alternative left to this court but to grant the motion to dismiss the appeal, for it is therein and thereby plainly shown that, even if the judgment and the order really rendered and entered were, or either of them was, subject to appeal by the intervener, the latter’s appeal was too late. But it appears that the judgment referred to affected the rights of the defendants only and not the rights of the intervener. Moreover, as shown in the original opin ion, the judgment was rendered on the twenty-ninth day of November, 1922, and entered of record on…