Perri v. Beaumont

Opinion — Paterson

Paterson, J.

The affidavit of service by mail states that a copy of a ivithin notice was deposited in the post-office at Sumner, California, postage thereon prepaid, addressed to Haggin & Dibble, attorneys for respondent, 45 Nevada Block, San Francisco, California, on February 8, 1890; that said attorneys reside at San Francisco, and the attorneys for appellant reside at Sumner, and that there is regular communication by mail between the two places.

The affidavit is uncertain as to the notice referred to; and as it was made on the 10th of February, 1890, it fails to show the places of residence of the respective attorneys on February 8th, and, strictly construed, is insufficient (Doerfler v. Schmidt, 64 Cal. 265); but as the defect is one arising, doubtless, out of a careless use of language, and the objection being rather technical, we deem it a proper exercise of our discretion to grant the appellant’s request to file another affidavit of service. The court should be liberal in granting amendments which can cause the respondent no injustice, and which will secure to the appellant a hearing on the merits.

If a sufficient affidavit of service is filed within five days from date hereof, the motion to dismiss will be denied; otherwise it will be granted.

Harrison, J., Garoutte, J., McFarland, J., De Haven, J., Sharpstein, J., and Beatty, C. J., concurred.