Appeal from the County Court of the County of Santa Clara.
The facts, as far as pertinent to the issue, are in the opinion of the Court.
1. The Court erred in sustaining the motion to dismiss the appeal. The notice given by the defendant was a substantial one, and informed the plaintiff of his rights. 3 Cow. 379. Hernandez v. Simon , 3 Cal. 464.
2. The respondent should have made his objection at the earliest opportunity, and not having done this, the objection came too late. 17 Johns. 63. 6 Ibid. 296, 323. 4 Cow. 557. 5 Blackf. 278. 1 Ibid. 115, 273. 2 Ibid. 79. 4 Ibid. 49. 1 Scam. 250. 2 Ibid. 264. 3 Ibid. 50, 274. 6 Ala. 607, 611. 3 Ibid. 43.
Wallace & Ryland, for Appellant.
Moore & Campbell, for Respondent.
No brief on file.
JUDGES: Heydenfeldt, J., delivered the opinion of the Court. Murray, C. J., concurred.
The case was in the County Court on appeal. There, both parties appeared, and argued a motion for continuance, which was granted. At the next term, the parties again appear, when the respondent objecting that the notice of appeal was insufficient, moved to dismiss the appeal, which was done.
It is unnecessary to decide whether the notice of appeal was in conformity with the statute. We have often determined, that where the object of notice was accomplished, it is immaterial whether there was notice or not. Where both parties appear, no notice whatever is necessary to be shown.
The judgment is reversed, and the cause remanded.