Dalzell v. Superior Court of San Benito County

McKee, J. Application for a writ of review.

It appears from the allegations of the petition that the Superior Court of San Benito County, upon the hearing of a motion to dismiss an appeal taken from a judgment rendered by a Justice’s Court, finding that there was no service of the notice of appeal to give the court actual jurisdiction of the case, ordered a dismissal of the appeal; and it is contended that this order was in excess of the jurisdiction of the court and void, because service of the notice of appeal as prescribed by law was substantially proved upon the hearing of the motion to dismiss.

The papers in the case, transmitted by the justice to the Superior Court, did not show any service whatever. But pending the motion made to dismiss the appeal on that ground, appellant’s attorney filed an affidavit upon which it was claimed that service, of the notice of appeal had been made upon the attorney of the adverse party, during his absence from his office.

Where the record of a case on appeal from a Justice’s Court is silent as to service of the notice of appeal, the fact of service may be proved by affidavit; but the affidavit must show that [454]all the requirements of the law to effect service were complied with. (Mendioca v. Orr, 16 Cal. 368; Doll v. Smith, 32 Cal. 476.) Service is effected by personal delivery of a copy of the notice to the adverse party, or his attorney; or it may be made during the absence of the attorney from his office, if the office be open, by leaving the notice . . . . with his clerk, or other person in charge of the office, or if there is no person in the office, by leaving it between the hours of 8 in the morning and 6 in the afternoon in a conspicuous place in the office, etc. (Subd. 1, § 1011, Code Civ. Proc.)

The affidavit of service states that the notice of appeal was served on the attorney for respondent “ by leaving it on the desk of the said attorney in the front room of his law office .... between the hours of 8 in the morning and 6 in the afternoon of the 6th of June, 1885,” .... and “that there was no person in said front room of said office at the time said notice of appeal was left there,” etc.

This was insufficient to show constructive service of the notice upon an attorney absent from his office. Taking as incontrovertible the fact that the attorney upon whom service was attempted to be made was not in the front room of his office at the time, his absence from his office is not deducible from the fact. It is not claimed that “the attorney of respondent” got the notice. In fact the affidavit states the attorney complained that “he would not have known that an appeal had been taken if he had not seen it in the newspapers.”