Linforth v. White

THE COURT.

Respondent insists that the appeal in this case should be dismissed on the ground that there was no service of the notice of appeal.

The appeal is taken from an order made by the superior court of Mendocino county, September 21, 1897, setting aside so much of a sale under a decree of foreclosure and sale as-embraced the land included in the mortgage of Costigan and not included in the mortgage belonging to Linforth, on the ground that said sale as to such portion was grossly inadequate in price, and was made without the knowledge of Costigan or his attorneys, and without any notice to either. At the hearing of the motion in which said order was entered Costigan, the moving party, was represented by Messrs. Seawell & Pemberton and Barclay Henley as his attorneys, and Linforth, the plaintiff in said action and purchaser at the said sale, was represented by J. Q. White and George A. Sturtevant as his attorneys. Linforth as appellant, and Costigan as respondent, are the parties to this appeal, and have appeared by the same attorneys who represented them in the court below at the hearing of the motion—wherein the order appealed from was entered. The only proof of the attempted service on the respondent of the notice of appeal herein is contained in the following affidavit:

“[Title of Court and Cause.]

“State of California, “City and County of San Francisco.

“Lewis W. Martin, having been duly sworn, says: That at all the times hereinafter mentioned I was a white male citizen and resident of the city and county of San Francisco, state of California, over the age of twenty-one years, not a party to or interested in the above-entitled action, and competent to be a witness upon the hearing of any proceeding therein.

“That at the city and county of San Francisco, state of California, on the twentieth day of November, 1897, I personally served the notice of appeal of Walter H. Linforth, as plaintiff,

[190]

and Walter H. Linforth, as purchaser, from the order made and entered in said action on the twenty-first day of September, 1897, granting the motion of the defendant Gostigan to set aside the sale made by the sheriff on the sixth day of March, 1897, and setting aside said' sale, upon Messrs. Seawell & Pemberton, attorneys for the defendant James M. Gostigan, by personally depositing in the general postoffice of the United States at San Francisco, California, on said twentieth day of November, 1897, a true and correct copy of said notice of appeal. That said notice of appeal was inclosed in an envelope, with the postage thereon fully prepaid, and said envelope plainly addressed to Messrs. Seawell & Pemberton, attorneys at law, Ukiah, Mendocino county, California, and that at said time the office and residences of said Seawell & Pemberton were at the said town of Ukiah, county and state aforesaid, and that at said time there was a direct and daily communication by mail between the said San Francisco, California, and the said town of Ukiah.”