Majority
p. 507[No. 8,039. Department One.] October 9, 1882. J. W. CUNNINGHAM, Road Overseer, v. CHRISTIAN WARNEKEY.
Headnote
Service of Notice by Mail—Notice of Appeal—Affidavit of Service— Dismissal of Appeal.—The affidavit of service of the notice of appeal did not show where the affiant, or where the appellant, resided.Held: The affidavit is insufficient: 1. To justify service by mail, the person making the service and the person served must reside or have their offices in “ different places,” and the affidavit must show these facts; 2. If both the party making the service and the party served resided or had their offices in the same “ place ” the service should noj; have been made by mail.
p. 508
Appeal by defendant from the judgment of the Superior Court of the County of Sonoma. Pressley, J.
Action for the abatement of nuisance in a public highway. The plaintiff had judgment in the Court below and moved in this Court to dismiss the appeal, on the ground that it did not appear that the notice of appeal had ever been served. The other facts are stated in the opinion of the Court.
Burnett & Newman, for Appellant.
A. B. Ware, for Respondent.
The affidavit of service of notice of appeal is as follows:
“ Daniel Brennan being duly sworn deposes and says: I am, and was at the time of service by mailage of the within copy notice of appeal, a white male citizen over the age of eighteen years, and competent to bé a witness in this action; that on the fifteenth day of August, 1881,1 se.rved the within copy notice of appeal by mailage on A. B. Ware, Esq., attorney for plaintiff, by leaving in the United States Postoffice in the city of Santa Rosa, county of Sonoma, and State of California, a copy of the within notice of appeal, directed to said A. B. Ware, Esq., at his place of business in said city of Santa Rosa, and county and State aforesaid, and paying the full postage price thereon and the same registered.
“ Daniel Brennan.
“ Subscribed,” etc.
The affidavit does not show where the affiant or where defendant (appellant) resided. The person making the service and the person served must reside, or have their offices in “different places ” to justify the service by mail. As between persons both of whom were in Santa Rosa, the service should have been personal. (C. C. P. 1012,1013.)
Appeal dismissed.