Hinkel

This is a motion to dismiss an appeal, upon the ground that the necessary parties were not all served with notice of appeal.

The action is, in form, ejectment, and several persons are named in the complaint as defendants. Before either of the defendants had been served with summons or had appeared, plaintiff’s attorney filed with the clerk of the court a dismissal of the action. Afterwards, two of the named defendants — Patrick Donohue and Mary Donohue — filed an answer, and also a cross-complaint, asking affirmative relief. Thereafter, on motion of plaintiff, the court made an order dismissing the action, *598 with costs to defendants. From this order, or judgment, the said defendants Patrick and Mary Donohue appeal.

They did not serve the other defendants with their notice of appeal; and for this reason respondent contends that the appeal should be dismissed.

We do not think that the other defendants were adverse parties within the meaning of section 940 of the Code of Civil Procedure. They would be entirely unaffected by any judgment that might be rendered on appeal. The plaintiff in this action had a clear right to dismiss as to any of the defendants who had not been…