Lightstone v. Laurencel — 2 Cal. 106

Majority — Heydenfeeldt J.

p. 106

FRANK J. LIGHTSTONE, Respondent, v. HENRY LAURENCEL and PETER SANSEVIN, Appellants.

Headnote

Though a decision of the Supreme Court will not be set aside for want of a formal statutory notice of argument, if the adverse party had actual notice, yet a judgment of affirmance for failure of the appellant to appear, will be set aside, if he had not actual notice, &c.

Appeal from the Third Judicial District, Santa Cerra County.

A notice by the respondent, dated September 5th, 1851, that the cause would be brought to hearing in this Court “at the next term, to be holden at, &c., on the first Monday of October next, at ten o’clock, A. M., or as soon thereafter as the same can be reached on the calendar,” was served on the attorneys for the appellants in the Court below, on the 10th of October, 1851. On the 20th of December last, the appellants failing to appear, on motion of the respondent, the judgment of the District Court was affirmed.

A. P. Qrittenden, for the appellants,

moved to set aside the judgment, on the ground that the notice of argument was irregular; and'¡read the affidavit of Laurencel, that “he never received any notice” that the cause would be argued at the last term, and did not know, until the 10th instant, that judgment of affirmance had been, rendered.

Sutherland, contra.

delivered the opinion of the Court. This

is a motion of the appellant to set aside the affirmance of judgment made at the last term, and restore the cause to the calendar, on the ground that he had no notice of trial, as was required by the rules of Court then in existence. He also files his affidavit, declaring that he had no actual notice.

We have before decided that we would not disturb a decision for the want of a formal statutory notice, where it appeared clearly that the party had actual notice. In this case, the papers disclose that the appellant did not have the notice required by the rules; the affirmance was for default of his appearance; and

p. 107

it is nowhere shewn that he had actual notice. Besides, his affidavit is additional weight to satisfy us that he had not.

The judgment of affirmance must he set aside; and the cause restored to the calendar.