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Perri v. Beaumont

88 Cal. 108 Court Cal. Decision date 1891-02-19 Docket No. 13737 English

Delivered by *109 Paterson, J.

Contents

Majority

p. 108
[No. 13737.
In Bank.
February 19, 1891.]
LODUVIO PERRI, Appellant, v. DUNCAN BEAUMONT, Respondent.

Headnote

Appeal—Notice—Service by Mail — Insufficient Affidavit. — An affidavit of service of a notice of appeal by mail, made two days" after the service of the notice, which avers that the attorneys making the service and the attorneys upon whom the service was made “reside” at places specified, between which there is a regular communication by mail, fails to show their place of residence at the time of the service, and is insufficient. Leave may be granted, however, to file an amended affidavit.
Id. — Amendment of Proof of Service. — The supreme court will be liberal in granting amendments to the proof of service of the notice of appeal which can cause the respondent no injustice, and which will secure to the appellant a hearing on the merits.
Motion to dismiss an appeal from a judgment of the Superior Court of Kern County for want of proper proof of service of the notice of appeal.
The facts are stated in the opinion of the court.
Haggin & Van Ness, and George G. Gorham, Jr., for Appellant.
J. B. Lamar, and E. Rousseau, for Respondent.

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.

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