
    [No. 3,893.]
    M. J. O’NEIL v. GEORGE DOUGHERTY.
    Appeal bt a Bankrupt.—The bankruptcy of a party against whom a judgment has been rendered, though adjudicated before the taking of the appeal, will not prevent the prosecution of an appeal in his name. The appeal may be prosecuted in the name of the bankrupt, or in the name of . his assignee.
    Appeal from the District Court, Nineteenth Judicial District, City and County of San Francisco.
    This action was brought to recover damages for injuries alleged to have been caused to a dwelling house by blasting upon a street adjoining it. The plaintiff obtained a judgment, and the defendant appealed. Before the time the appeal was taken, the appellant had been adjudged a bankrupt, all his property, debts, and credits having been assigned to his trustee in bankruptcy.
    
      Pixley & Harrison, for Respondent, moved to dismiss the appeal upon the ground that the appellant was not the party in interest. They argued that, since in this State the equity rule of making the party in interest the party of record has been adopted (Code Civil Procedure, Secs. 367, 369), the bankruptcy of the appellant should have been suggested, and his assignee substituted of record. (Daniel’s Ch. Pl. and Pr., 66, 76, 229; Story’s Equity Pl. Secs. 342, 349; 2 Barb. Ch. Pr. 65, 66; Sedgwick v. Cleavland, 7 Paige, 287, 289; Garr v. Gomey, 9 Wend. 649; Sanchez v. Roach, 5 Cal. 248; Judson v. Love, 35 Cal. 463; Shartzin v. Love, 40 Cal. 93.)
    
      H. F. Crane, for Appellant, cited section three hundred and eighty-five of the Code of Civil Procedure.
   By the Court:

The bankruptcy of Dougherty, the appellant, though adjudicated before the taking of the appeal, will not prevent its prosecution in his name, nor will the respondent be heard to object on that ground. The appeal may be prosecuted in the name of the bankrupt, or in that of his assignee. (Code Civil Procedure, Sec. 385.) Besides, it is shown that the assignee is really conducting the appeal here, though in the name of the bankrupt.

Motion denied.  