Dinan v. Stewart
Before: Wallace
Synopsis
Notice of Appeal.—A notice of appeal given before July 1,1874, was required to be filed on the same day it was served.
Idem.—The question whether the amendment to section nine hundred and forty of the Code of Civil Procedure, which went into effect July 1, 1874, changed the rule in this respect, not decided.
Dismissal of ah Appeal.—If an appeal is ineffectual from failure to file and serve the notice on the same day, a motion to dismiss the same will be denied.
By the Court, Wallace, C. J.: It appears by the certificate of the Clerk of the Court below, filed here in support of the motion to dismiss the appeal, that the notice of appeal was filed on the 28th day of April, 1874, but was not served on the respondent’s attorney until the 1st day of May, 1874.
[568]In Columbet v. Pacheco (46 Cal. 650), we held that, under section nine hundred and forty of the Code of Civil Procedure, it was necessary to the taking of an appeal, that the filing and service of the notice should be effected on the same day. It appearing, therefore, that no appeal has been taken in this case, the motion to dismiss the appeal must be denied.
The amendinent to section nine hundred and forty of the Code of Civil Procedure, if it changed the rule in this respect, did not take effect until July 1, 1874, and, therefore, does not apply to this case.
Motion denied.
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