Matthews v. Superior Court

McKee, J. In the case of Goughran v. Matthews, on appeal to the Superior Court of Marin County, a writ of certiorari was issued on the 20th of October, 1885, to determine whether the Superior Court had pursued its jurisdiction in refusing to settle a statement presented in the case upon a motion for a new trial, and in ordering the dismissal of the motion.

Pending that proceeding in error, Matthews, the petitioner in error, on the 31st of October, 1885, applied for another writ of certiorari to determine whether the Superior Court had acquired jurisdiction at all to proceed in the case.

Upon the hearing had upon the first writ, the order of dismissal was reversed, upon the ground that the lower court exceeded its jurisdiction in making the order without first settling the statement upon which the motion for a new trial was to be made.

After the announcement of that decision, a return was made in the proceeding in error instituted by the present writ. The return shows that there had been an appeal taken in the case, “ on questions of both law and fact,” [528]by a notice of appeal addressed to the justice of the peace and “ James F. Smith,” attorney for respondent. This notice was given under section 974 of the Code of Civil Procedure, which provides how an appeal shall be taken to a Superior Court. The provision is: “The appeal is taken by filing a notice of appeal with the justice, and serving a copy on the adverse party.” Service on the attorney of record of the adverse party is sufficient. (Code Civ. Proc., sec. 1015.)

But the return shows that the proof of service of the notice consisted of an affidavit in form of service upon “ Frank J. Smith, attorney of respondent.” And the alleged affidavit was not sworn to or subscribed before any officer. “ Frank J. Smith” was not the attorney of record of respondent; and as the proposed affidavit of service was not verified, the proof of service of the notice of appeal was inadequate.

The exercise of jurisdiction by an appellate court in a case where there has been no service of notice of appeal is ineffectual and void. (Coker v. Superior Court, 58 Cal. 177; Trobock v. Caro, 60 Cal. 301.) But the party upon whom the law requires notice to be served may voluntarily appear and submit himself to the jurisdiction of the court. If he appears, his appearance is a waiver or cure of the want of notice.