Steele v. Board of Supervisors

Appeal by defendants from the judgment of the Superior Court of the County of Merced. Marks, J.

Petition for writ of mandate to compel the Board of Supervisors of Merced County to award the county printing to the ' plaintiff. The petition for the writ was filed in the Superior Court of Merced County on August 27, 1880. Defendants demurred to the writ; the demurrer was overruled, and defendants declining to answer, judgment was given against them. The notice of appeal was dated November 5,1880.

As appears from return of service indorsed thereon, it was served on the sixth day of November, 1880, on the plaintiff, Rowena G. Steele, personally, at the county of Merced, by the Sheriff of that county. The affidavit of service of the notice upon the plaintiff’s attorney is in the words and figures following:

“ State of California, County of Merced, ss.: Zue G. Peek, being-duly sworn, deposes and says: he is a white male citizen over the age of twenty-one years, and he is clerk in the office of Frank H. Farrar, District Attorney of Merced County, California. That, as such clerk, he did, on the eighth day of November, A. D. 1880, deposit in the United States post-office in the town of Merced, county of Merced, State of California, a sealed envelope with a six-cent United States postage stamp imprinted thereon, containing a true and correct copy of the annexed notice of appeal, and directed to Mrs. Laura DeForce Gordon, 29 Montgomery Block, San Francisco, California.

“ That affiant is informed and believes, and so states the facts to be, that said Laura DeForce Gordon is the attorney of record for the plaintiff in the action wherein the annexed notice of appeal is given, and that her place of business is at 29 Montgomery Block, in the City and County of San Francisco, State of California. Zue G. Peck.”

Respondent moved to dismiss the appeal on the ground that no service of the notice of appeal was shown in the transcript on appeal.