People v. Alameda Turnpike Road Co.

By the Court, Currey, C. J.: When this case" was called for argument the defendant’s counsel presented to the Court exceptions, to the effect that no proper evidence of the service of notice of appeal appears in the transcript, which exceptions were duly taken and filed in accordance with a rule of the Court.

The notice of appeal contained in the transcript is in due form, but the evidence that a copy of such notice was served [183]on the attorneys for the defendant is an affidavit which purports to have been annexed to the notice filed, in the following words and figures:

“ State of California, ) „ County of Santa Clara, )

“ I, E. F. Peckham, do solemnly swear that I, on the 25th day of January, A. D. 1866, after the foregoing notice had been filed with the Clerk of the District Court of the County of Santa Clara, served a true copy thereof on Patterson, Wallace & Stow, attorneys for the defendant, by depositing said copy inclosed in an envelope and directed to said Patterson, Wallace & Stow, at San Francisco, their place of residence, in the Post Office at San José, my place of residence, and prepaying postage.” '

The affidavit was signed by E. F. Peckham and sworn to before a proper officer on the day last named and filed in the office of the Clerk of the District Court on the same day. The notice itself is signed with the name of “John G. McCullough, Attorney-General,” and “ E. F. Peckham, of counsel.”

The three hundred and thirty-seventh section of the Practice Act provides the mode of taking an appeal, in the following words: “The1 appeal shall be made by filing with the Clerk of the Court with whom the judgment or order appealed from is entered, a notice stating the appeal from the same or some part thereof, and serving a copy of the same upon the adverse party or his attorney.”

The service of written notices and other papers, except original and final process, and except subpoenas, writs, etc., must 'be made on the attorney of a party, provided he has appeared by attorney. (Practice Act, Secs. 519, 523, 524.) Under certain specified circumstances the service of notices may be made through the mail. Service by mail may be made when the person making the service and the person on whom it is to be made reside in different places, between which there is a regular communication by mail. (Practice Act,¿3ec. 521.) The five hundred and twenty-second section of the Practice