Appeal by one Defendant from Judgment — Dismissal — Adverse Party.—In dismissing an appeal from a judgment taken by one of two defendants, for the reason that the notice of appeal was not served on the co-defendant, the supreme court necessarily determined that such co-defendant was an “ adverse party ” within the meaning of section 940 of the Code of Civil Procedure.

Id.—Appeal from Order Defusing New Trial—Service of Notice of New Trial—Denial of Order.—While an appeal from an order denying a motion for a new trial will not be dismissed for the failure to serve the notice of appeal on a party who had not been made a party to the motion, still the failure to serve the notice of the motion for a new trial on an adverse party, as required' by section 659 of the Code of Civil Procedure necessitates the denial of the motion for a new trial, and on appeal the affirmance of the order denying such motion.

Id.—New Trial Attacks "Verdict—Judgment Following Pleadings. —While a motion for new trial attacks the verdict rather than the judgment, and may be made prior to the entry of judgment, and therefore the question who is an adverse party, entitled to notice under section 659, is to be determined from the verdict rather than the judgment, nevertheless, where the judgment is one which under the pleadings properly follows from the verdict, the question who are adverse parties is the same whether the verdict or judgment be considered

pD.—Action on Insurance Policy—Mortgagee as Defendant—Appeal by Insurer.—In an action by the insured to recover a loss under a policy of fire insurance in the sum of one thousand dollars, brought against the insurer and a mortgagee of the insured property holding a 'mortgage to secure an indebtedness of four hundred dollars owing from the plaintiff, in which the complaint prayed for judgment for the full amount of the policy and that out of such judgment the amount due the mortgagee be paid, a verdict for the plaintiff for the full amount of the policy should be construed in the light of the pleadings and the case made by the complaint and as giving the mortgagee a beneficial interest therein to the extent of the mortgage indebtedness. So construed the mortgagee was an adverse party to a motion by the insurer for a new trial, and should have been served with notice of the motion.