Summary
In Columbet v. Pacheco (46 Cal. 650), we held that, under section nine hundred and forty of the Code of Civil Procedure, it was necessary to the taking of an appeal, that the filing and service of the notice should be effected on the same day.
Summary of this case from Dinan v. StewartOpinion
Appeal from the District Court, Twentieth Judicial District, County of Santa Clara.
The plaintiff had judgment in ejectment; the defendant moved for a new trial and the motion was denied. February 1st, 1873, the defendant filed a notice of appeal and undertaking on appeal, but did not serve the notice until February 3d, 1873. After filing the transcript and an opening brief, the defendants, on March 5th, 1873, took an appeal from the same judgment and order, filing their notice and undertaking and serving the notice on the same day.
COUNSEL:
Creed Haymond, for Respondent, moved to dismiss the appeal taken March 5th, 1873, on the ground that after the first appeal had been taken there was nothing in the Court below to appeal from.
William Mathews, for Appellant, replied that the first attempted appeal was ineffectual because the notice had not been served in time.
OPINION
By the Court:
The motion to dismiss the appeal taken on March 5th, 1873, must be denied. The attempted appeal of February, 1873, was ineffectual, because, though the notice of appeal and undertaking on appeal were filed on the same day, the notice of appeal was not served until two days thereafter. We think that under section nine hundred and forty, Code of Civil Procedure, the filing of notice of appeal, filing the undertaking, and service of the notice, must be effected " at the same time" --that is to say, on the same day--for we will not regard fractions of a single day for this purpose. The service of the notice may be personal in the usual mode, or it may be effected in any of the other modes provided in the Code: Secs. 1011, 1012, et seq. That the notice of appeal, however, must be served actually or constructively at the same time that the undertaking on appeal is filed is apparent, in view of the provisions of section nine hundred and forty-eight, by which the time to except to the sufficiency of the sureties upon the undertaking on appeal is limited to " thirty days after the filing of such undertaking." It would be unreasonable to hold that this period of time may run against the respondent, without his having had notice in some mode that the undertaking had been actually filed in the Clerk's office, and the Code having failed to provide for a special notice of that fact, we think it was intended that the service of the notice of appeal should itself operate such notice.
Motion denied.