Quist

The appeals in the above-entitled case are from the judgment and from the order denying appellants’ motion for a new trial. Respondents move to dismiss the appeals, the first upon the ground that Sandman, a defaulting defendant, was not served with notice of the appeal and is an adverse party whose rights will be injuriously affected by a reversal or modification of the judgment ; the ■ second upon the ground that the case was tried upon an agreed statement of facts, with a stipulation waiving findings, and that, as a motion for a new trial is a request to the court to re-examine an issue of fact, since here the facts are stipulated, an appeal from the court’s order refusing to do so is a vain and useless thing.

As to the appeal from the judgment it is sufficient to say that the determination of the question whether or not defendant Sandman is an adverse party who should have been served, and whether or not, as between the appellants and the respondents actually served, a judgment could be rendered without affecting the rights of Sandman, necessitates an examination of the record. In accordance with the prac tice of this court in such cases, that examination will not be made in…