Sullivan v. Wallace

Foote, C. — This is an action of ejectment, the plaintiff had judgment, but upon motion duly made the court below granted a new trial, and from the order made in the premises this appeal is taken.

The respondents’ motion to dismiss the appeal should be denied, as the affi davit of the appellant’s counsel shows that service of the notice of appeal was properly had on the attorney of the former.

The appellant contends that the notice of motion for a new trial was not filed in the clerk’s office until the eleventh day after the notice of the decision had been deposited in the post-office at Sacramento, postage paid and properly directed to the respondents’ attorney of record at his office in San Francisco. But it is shown that the distance from Sacramento to San Francisco is seventy miles, and section 1013, Code of Civil Procedure, with reference to the service of such a notice as that of the decision in a case, is as follows:—

“ In case of service by mail, the notice or other paper must be deposited in the post-office, addressed to the person on whom it is to be served, at his office or place of residence, and the postage paid. The service is com[309]píete at the time of the deposit, but if within a given number of days after such service a right may be exercised or an 'act is to be done by the adverse party, the time within which such right may be exercised or act be done is extended one day for every twenty-five miles distance between the place of deposit and the place of address, such extension, however, not to exceed ninety days in all.”

Here the act to be done by the adverse party after the service of notice of decision was the filing and serving of the notice of intention to move for a new trial; and as it appears by the record that the distance between the place of deposit and the place of address, as regards the first notice, was seventy miles, the attorney for the appellant had twelve days from date of the deposit of the first notice in the post-office at Sacramento within which to file and serve the notice of motion, that is, until the twelfth day of January, 1885, and it was filed and served one day before that time.

The appellant also argues that the statement on motion for a new trial should not have been settled, because of the fact that it was not served as required by law.

The certificate of the judge who settled the statement carries with it the presumption that it was regularly and properly done; for, “in the absence of anything appearing to the contrary, the legal intendment would arise from the fact of the bill being signed by the judge, that the same was done regularly.” (People v. Martin, 6 Cal. 477; Hayne on New Trial, sec. 146; Valentine v. Stewart, 15 Cal. 396; Young v. Rosenbaum, 39 Cal. 646.)