Jackson v. Jackson

THOMPSON, J.

This is a motion to dismiss the appeal on the ground that the notice of appeal was not signed by the attorney of record.

A complaint was filed in the Superior Court of Sacramento County to establish an alleged community interest in real property, and to set aside a property settlement agreement. J. M. Inman appeared of record as the attorney for plaintiff. Rowland and Craven of Sacramento appeared of record as the attorneys for defendant. After trial and the adoption of findings favorable to the defendant, judgment was rendered accordingly and entered January 5, 1945. Notice of the entry of judgment was served on J. M. Inman, March 13, 1945. No motion for new trial was made. March 3, 1945, Edward D. Mabson, an attorney who resides in San Francisco, mailed to the county clerk and filed a notice of appeal pursuant to section 940 of the Code of Civil Procedure, and rule 1(a) of Rules on Appeal. That notice of appeal was signed only by Edward D. Mabson. Thereafter Mr. Mabson gave notice to the clerk to prepare a transcript on appeal. May 25th, Mr. Mabson sent to J. M. Inman, by mail, a form for substitution of attorneys, which was signed by plaintiff and consented to by Inman, and filed on May 31st. On the last mentioned date defendant’s attorneys filed written objections to the settlement of transcript on the ground that the notice of appeal is invalid and ineffectual since it was not signed by either the plaintiff or J. M. Inman, her attorney of record. The objections to settlement of the transcript were heard by the court and sustained on July 21, 1945, on the ground that the notice of appeal was ineffectual since it was not signed either by the appellant or her attorney of record, and that the time for filing a valid notice of appeal had elapsed.

Motion was thereupon made in this court, upon notice thereof, to dismiss the purported appeal for lack of legal notice of appeal. Mr. Mabson appeared in opposition thereto. The motion was based on the certificate of the clerk to the

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record of the foregoing facts, together with an affidavit of Mr. Mabson in accordance therewith. There is no conflict of evidence. Mr. Mabson’s affidavit avers that he was employed by plaintiff on January 4, 1945, to prosecute the appeal from the judgment. It appears from the record that the defendant’s attorneys had no knowledge of the employment of Mr. Mabson until the filing of the notice for the clerk to prepare the transcript. They did not recognize appellant’s new attorney by acknowledgment of any documents, by consent to continuances, or otherwise.