Foy v. Domec

California Supreme Court Oct 15, 1867Published

Before: Sawyer

AI Brief

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Holding. An appeal is not effectual under the statute unless the filing of the notice of appeal precedes or is contemporaneous with its service.

Issues

Whether an appeal is effectual when the notice of appeal is served before it is filed.

Disposition. Dismissed

Quotations verified verbatim against the opinion

“it has been repeatedly held that to render an appeal effectual, under the statute, the filing must precede, or be cotemporaneous with, the service.”

Synopsis

Notice of Appeal.—The filing of a notice of appeal must precede or be cotemporaneous with the service of the same to render an appeal effectual.

By the Court, Sawyer, J.: The notice of appeal appears to have been served on the 6th, and filed on the 9th, of February, 1867, and respondents move to dismiss because no effectual appeal has been taken. It has been repeatedly held that to render an appeal effectual, under the statute, the filing must precede, or be cotemporaneous with, the service. (Boston v. Haynes, 31 Cal. 107.)

The appeal must be dismissed, and it is so ordered.

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