Whipley v. Mills

Burnett, J., delivered the opinion of the Court—Field, J., concurring. The judgment in this case was rendered on the 29th March, 1852. Notice of appeal filed in the Clerk’s office April 15th, 1852, and transcript on appeal filed in this Court June 17th, 1857. The record contains no evidence that a copy of the notice was served upon the appellee, as required by the 337th section of the Code.

The appeal is made by filing and serving the notice. Both requisites must exist to complete the appeal. If either could be omitted, it would be the filing of the notice. A failure to notify the other party is more material than a failure to file in the Clerk’s office. No copy of the notice having been served upon the appellee, he had no opportunity to move to dismiss the appeal. The result was that the transcript is made out and sent up more than five years after filing the notice of appeal. (Franklin v. Reiner, 8 Cal. R., 340.)

The appeal must be dismissed.