Wright v. Ross

Opinion — Sawyer

By the Court, Sawyer, J.

Respondents move to dismiss the appeal, on the ground that there was no service of notice of appeal after it was filed with the Clerk.

The notice appears by the record to be indorsed, “ Filed July 13, 1864;” and under this is an indorsement of admission of service, also dated, “ this 13th day of July, 1864.” The necessary inference would be that the filing preceded the service. But the affidavit of respondents’ attorney shows that the service in the order of time actually preceded the filing, while that of appellant’s attorney shows that the service was made in the Court-room, and the notice immediately taken to the Clerk, in the adjoining room, and filed; and that not to exceed five minutes was required to accomplish both the service and filing. This must be regarded as one act. The record indicates the proper order of proceedings, and it is at least doubtful whether affidavits could be received to show a different order. But this must be regarded as one continuous transaction. The whole was done at one time; and in Hastings v. Halleck, 10 Cal. 31, and Warner v. Holman, 24 Cal. 248, it was held that, “ the service should be made after, or at the time of the filing of the notice.” The notice is sufficient.

Motion denied.