Mendioca v. Orr
Before: Cope
Synopsis
On appeal from a Justice’s to a County Court—the record not showing that notice of appeal had been served on the adverse party—appellant may prove by his affidavit that snch notice was in fact served.
Cope, J. delivered the opinion of the Court Baldwin, J. concurring.
In this case, an appeal from a Justice’s Court to the County Court of Santa Cruz county was dismissed, on the ground that the record did not show that the notice of appeal had been served upon the adverse party. The appellant offered to prove by affidavit that the service had in fact been made, but the Court declined to admit the proof. This was clearly erroneous. The fact of service was the important matter, and it was of no consequence that its existence was not shown by the record. If the service was made, the jurisdiction had attached; and to show that it was made, the affidavit of the appellant was competent and proper evidence.
Judgment reversed and cause remanded.
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