Luck v. Luck

Paterson, J. — This is an action for divorce. The prayer of the plaintiff was denied, and the custody of the children was awarded to the defendant. Plaintiff appealed from that portion of the judgment giving the care, custody, and control of the children to the defendant.

Respondent moves to dismiss the appeal on the following grounds: “ That the portion of the judgment appealed from is not appealable; that the notice- of appeal was not served as required by sections 1012 and 1013 of the Code of Civil Procedure; that the notice of appeal was served by an attorney — Kierce — who had no authority to sign or serve it.

1. The right to the care, custody, and control of the children was an issue in the case; judging from the nature of the appeal, it was the issue upon which the parties made their chief efforts. Plaintiff alleged that defendant was not a fit person to have the care of the children. Defendant denied the allegation, and countered with a similar accusation against the plaintiff. The portion of the judgment appealed from is a part of the final decree; and an appeal may be taken from any final decree, whatever its nature, and from any part thereof. The fact that the court below may modify the decree, so far as the children are concerned, does not [576]deprive the defeated party of her right to have this court say whether the judgment of the court below is correct. Such party is not bound to wait for the court below to change its judgmej.it. The cases cited upon the proposition that the appellate court will not disturb the action of the court below in exercising its discretion in such matters have no bearing ou the question as to whether the order is appealable.

2. The attorney who served the notice of appeal resided and has his office in the city of San Francisco, and the attorneys for respondent reside in Martinez, Contra Costa County. The notice was served by depositing it in the post-office at Oakland, with postage prepaid, and addressed to the attorneys for respondent at Martinez. It is claimed that the service was ineffectual, because the notice was not mailed at San Francisco; and the case of Reed v. Allison, 61 Cal. 461, is relied on in support of the contention. That case had been tried in the'city of San José, and the attorney for appellant, being in that place on business, served the notice of appeal personally on the respondents residing there, and mailed notices to the other respondents. The attorney for appellant resided at San Rafael, Marin County. The court held that the attempted service upon the respondents residing at Redwood City, San Francisco, and other places, except at San José, was void; and it being an action of partition, and necessary to have all the parties before the court, the appeal was dismissed. We think that case, and Murdock v. Clarke, 73 Cal. 25, which followed it, in Department, should be overruled. The decision in Reed v. Allison was based upon a construction of sections 1012 and 1013 of the Code of Civil Procedure, which, in our opinion, is not warranted by the language of those sections, and upon cases which do not support the conclusion reached. As was said in that case: “The conditions involved in the fact of service by mail are: 1. That the person making the service, and the person oji whom it