Valley Vista Land Co. v. Nipomo Water & Sewer Co.

KAUS, P. J.

On March 17, 1967, the superior court entered a judgment which affected three parties: it-awarded the plaintiff Valley Vista Land Co., (“Valley Vista”) the sum of $40,000 against the defendant Nipomo Water

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Sewer Co., (“Nipomo”) and adjudged that this indebtedness “shall not constitute a vendor’s lien ... as against defendant Jake Will . . . but that the deed of trust in favor of said defendant Jake Will ... is expressly declared to be prior in right to the unpaid indebtedness which defendant Nipomo Water & Sewer Co. owes to plaintiff Valley Vista Land Co. ’ ’ On May 24, 1967, Nipomo filed a notice of appeal. On June 5, 1967,

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Valley Vista filed a notice of appeal from that portion of the judgment which declared Jake Will’s deed of trust to be prior in right.

The record on both appeals was filed in this court on July 31, 1967. Meanwhile, on July 28, 1967, Jake Will filed a motion to dismiss Valley Vista’s appeal as having been filed too late. Three days later Valley Vista filed a notice of motion to dismiss Nipomo’s appeal on the same ground.

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Valley Vista’s motion is supported by declarations of two deputy county clerks which show the following: On March 20, 1967, notices of entry of judgment were mailed to the attorneys for all parties. Unfortunately the envelope containing the notice of entry of judgment addressed to the attorney for Nipomo bore the address “1180% Wilshire Boulevard” whereas his correct address was “ 11803%, Wilshire Boulevard. ’ ’

The fact that the envelope had been mis-addressed was brought to the attention of the county clerk on May 24, 1967. New notices of entry of judgment were thereupon mailed to all parties. A search of the county clerk’s office did not reveal that the original misaddressed notice of entry of judgment had ever been returned by the postal authorities. On August 3, 1967, the attorneys for Valley Vista served yet another notice of entry of judgment on the attorneys for Nipomo and Jake Will.

Lyle W. Rucker, Esq., the attorney for Nipomo has filed a declaration to the effect that he never received the misaddressed notice of entry of judgment and first learned of such entry the day his notice of appeal was filed.