East Side Canal & Irragation Co. v. Superior Court

Application for writ of mandate to compel the settlement of a bill of exceptions by the judge of the superior court of Merced County, said bill of exceptions to be used on an appeal from an order of said court denying the motion of petitioner to tax the costs on appeal in the action entitled Thomas G. Tuner, as Administrator, etc., et al., Plaintiffs, v. East Side Canal & Irrigation Company, Defendant.

It appears from the petition that in the trial of said action judgment passed for defendant and plaintiffs appealed. The

Mr. Treadwell made affidavit that no bill of exceptions to said order of April 5, 1915, was ever served on counsel for

“May 26, 19Í5.

“Mr. James F. Peck, Crocker Building, San Francisco, Cal.

“Dear Sir: The costs on plaintiff’s appeal, as taxed by the court, in the case of Turner vs. East Side Canal & Irrigation Company amount to nine hundred and sixty-three dollars and ten cents ($963.10). Will you kindly have your client send a check for the same at once.

“Tours truly,

“Edward F. Treadwell.”

Mr. Peck made affidavit that, on May 27, 1915, “he had a conversation by telephone with P. J. Thornton, the county clerk of Merced County and ex-officio clerk of the superior court of Merced County. That in said conversation the affiant inquired of said clerk as to whether or not the said court made any decision or determination of the motion, theretofore submitted to said court, to tax costs of the plaintiff on appeal in the above-entitled case; that the said clerk then informed affiant that no decision or order had been made by said court on said motion or the subject thereof, whereupon affiant requested the clerk to carefully examine the records for the purpose of ascertaining the facts, and the . clerk said he would do so, and the clerk thereafter on said day stated over the telephone that no order or decision had been made by said court on said motion to tax costs. ” It is then stated that, within ten days before service of said proposed bill of exceptions (which was on July 15, 1915), affiant was informed by letter written by said clerk informing affiant of the fact of the court’s order and decision “on said motion to tax costs, ’ ’ and reciting the fact of the mistake of said' clerk. “And affiant never had any knowledge of any order or decision upon said motion, and at all times herein mentioned, the said Edward F. Treadwell, attorney for plaintiffs, had his law office in the city and county of San Francisco. ’ ’

It thus appears that the cost bill was duly served and filed, objections thereto made on motion to tax costs, a hearing

In explanation of its action the court said: “In order that you may know my reasons for ruling in the matter of the settlement of a bill of exceptions in the case of Turner v. East Side Canal Co. etc., I will simply state that I acted upon the authority of the case of Heinlen v. Heilbron, 94 Cal. 636 , [ 30 Pac. 8 ], The affidavit states positively that the office of defendants’ attorney was at the place to which the notice was directed — Crocker building, etc. This constitutes personal service where its receipt is not denied and every opportunity given to make denial.”

We think there can be no doubt of the receipt of Mr. Treadwell’s letter by Mr. Peek. It was deposited in the postoffice at San Francisco on May 26, 1915, directed to Mr. Peck in the building where he had his office, the postage prepaid, and on the next day Mr. Peck called up the clerk to learn whether an order had been made on the motion to tax costs. In his affidavit he does not deny its receipt.

The question then is — Was the letter of Mr. Treadwell sufficient to impart legal notice to Mr. Peck that the court had made the order of April 5, 1915?

Section 649 of the Code of Civil Procedure provides as follows: “A bill containing the exception to any decision may be presented to the court or judge, for settlement at any time after the decision is made, but the same must be pre

“Service by mail is good only where the person making the service and the person on whom it is made reside in different places, between which there is regular mail communication.” (Linforfh v. White, 129 Cal. 188 , 191, [ 61 Pac. 910 ]; Thompson v. Brannan, 76 Cal. 618 , [ 18 Pac. 783 ]; Pacific Mut. Life Ins. Co. v. Shepardson, 76 Cal. 376 , [ 18 Pac. 398 ].)

Section 1011 of the Code of Civil Procedure, however, provides that “The service may be personal, by delivery to the party or attorney on whom service is required to be made . . . and points out how the service is to be made if upon an attorney and also if upon a party. It was said, in Heinlen v. Heilbron, 94 Cal. 636 , 640, [ 30 Pac. 8 ] : “The ‘delivery’ which constitutes a personal service under section 1011 need not be made by the individual who is attempting to make the service, but can he effected through a clerk or messenger, and through any agency by which a ‘delivery’ can be made, and when the notice is so delivered, the service becomes a personal service.” In this case the notice was a notice of appeal, which was attempted to be served through the mail, and there was controversy as to whether the package was directed to the place of residence of respondent’s attorney, a question the court seems not to have regarded as important. It appeared from the affidavit of respondent’s attorney that he received a copy of the notice of appeal at his office and residence in San Jose, through the agency of the postoffice and this, said the court “is equivalent to an admission of service indorsed by him upon the original notice, and establishes that there had been a personal service upon him of such notice, and that the court has thereby obtained jurisdiction of the appeal.” It was said further that “jurisdiction, however, as has frequently been held, does not depend

Petitioner’s view of the matter is thus expressed: ‘‘We claim that had the letter been actually personally delivered it would not have answered the statute as to notice because of its form. The letter was a demand for payment, and inferentially referred to an order. It did not expressly state that an order, denying the motion to tax caste, had been made by the court, nor did it give any date as to when the costs were taxed. It was not addressed to any person in a representative capacity, as attorney, nor was the same signed by any person as attorney. In itself it did not, nor was it intended to, convey notice. That was not its purpose. It was not entitled in any case or any court, nor was it filed among the records of the case. In passing upon the legal value of this dunning letter as a purported notice, the function of a notice in such a case must be considered. It is not primarily to inform a party of the fact that a certain order was made, but to notify him that his time, within which to perform a certain act, has begun to run, and it should show clearly and explicitly on its face that its purpose was to start the tolling. The statute providing for written notices, as in this case provided, is the equivalent of a stipulation that the party to be charged with the performance of an act may perform such act any time prior to and within ten days after service of the statutory formal notice.”

We think there is much force in the views thus expressed. It was said, in Mallory v. See, 129 Cal. 356 , 359, [ 61 Pac. 1123 ], speaking of section 659 of the Code of Civil Procedure: ‘‘Written notice of filing of decision is in all cases required, unless waived by facts appearing in the records, files, or minutes of the court; and it follows that actual notice or knowledge, other than bj written notice, is insufficient in any case

It appears from the petition that defendant in the action, petitioner here, has duly perfected its appeal to this court from said order, and said bill of exceptions was presented as part of the record on 'said appeal. The order of April 5,1915, is not an appealable order.

Hart, J., and Ellison, J., pro tem., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on June 22, 1916.