Hildreth v. Gwindon — 10 Cal. 490

Majority

p. 490

HILDRETH et al. v. GWINDON et al.

Headnote

Unless it affirmatively appear in the record that a copy pf the notice of appeal has been served upon the adverse party, or his attorney, the Supreme Court can not take jurisdiction of the case.

Motion to set aside the judgment of reversal, and to reinstate the cause on the calendar.

p. 491

Robinson and Beatty for the motion.

Terry, C. J., concurring.

This case was brought to a Rearing in the absence of the respondent’s counsel, and the judgment reversed. The respondent now moves to set aside the judgment, and to reinstate the cause on the 'calendar, upon the ground that the record does not disclose any proof of service of the notice of appeal.

The motion must be granted. Unless it affirmatively appear in the record that a copy of the notice of appeal has been served upon the adverse party, or his attorney, we can not take jurisdiction of the case. (Practice Act, § 337; Franklin v. Reiner, 8 Cal., 340 .)

In reinstating the cause, it is proper that the appellant should have leave to supply the omission in the record if any service was ever made.