Majority
p. 376[No. 12435. In Bank. May 31, 1888.] PACIFIC MUTUAL LIFE INSURANCE COMPANY OF CALIFORNIA, Respondent, v. DUDLEY SHEPARDSON et al., Appellants.
Headnote
Appeal—Notice of—Service bt Mail—Requirements of Affidavit of Service.—An affidavit of the service by mail of a notice of appeal must positively state its service, and not merely that the affiant believes he served it, and must also show that the affiant and the person served resided or had their offices in different places, and that there was a communication by mail between such places; otherwise, the appeal will be dismissed.Appeal from a judgment of the Superior Court of Colusa County.
Motion to dismiss appeal. The action was brought to foreclose a mortgage. Judgment was rendered in favor of the plaintiff, from which the defendants appealed. The affidavit of the service of the notice of appeal was made by the attorney for the defendants, and is as follows:—
“ State of California, > County of Colusa.) ss"
“ D. Shepardson, one of the defendants in the case of the Pacific Mutual Life Insurance Company v. Dudley
p. 377
Shepardson and Winnie Shepardson, No. 1084, being duly sworn, deposes and says that he alleges and believes that he has served a copy of the notice of appeal herein filed on the twenty-sixth day of October, 1887, at thirty minutes past ten o’clock, A. m., on Charles N. Fox, the attorney for the plaintiff in the above-entitled action, by depositing the same in the post-office at Colusa, Colusa County, California, addressed to the said -Charles N. Fox at his office in San Francisco, California, viz., 530 California Street, postage prepaid.
(Signed) “D. Shepardson.”
The further facts are stated in the opinion of the court.
Shepardson & Moore, Joe Hamilton, and George W. Hamilton, for Appellants.
G. N. Fox, for Respondent.
This is a motion to dismiss an appeal,, and must be granted for the following reasons:—
1. The affidavit of service of the notice of appeal does not state positively its service, but only that the affiant alleges and believes he served it.
2. The affidavit fails to show that the affiant and the person served resided or had their offices in different places (Cunningham v. Warneky, 61 Cal. 507 ), or that there was any communication by mail between Colusa and San Francisco. (Reed v. Allison, 61 Cal. 461 ; Steele v. Supervisors of Merced County, 62 Cal. 6 .)
The appeal is dismissed.
Sharpstein, J., Paterson, J., McKinstry, J., and Thornton, J., concurred.
Cases cited
- Cunningham v. Warnekey 61 Cal. 507 p. 377
- Reed v. Allison 61 Cal. 461 p. 377
- Steele v. Board of Supervisors 62 Cal. 6 p. 377