Lubbock v. Brooks

RHODES, J. The respondent moves that the appeal be dismissed. The defendants’ motion for a new trial was denied on the 25th of August, 1862. No notice of appeal appears in the record in this court, but the clerk certifies that “a notice on appeal in the above entitled action was duly filed as appears from an entry made in £J’ Register of Actions on the 16th day of October 1862,” and that the notice of appeal has been lost. If it is admitted that the certificate of the clerk may be substituted for, and fill the place of, the lost notice of appeal, in the transcript, it does not appear that the notice was served on the respondent. An appeal is not in fact taken unless the notice is served contemporaneously with or after the filing of it, and indeed this court has no jurisdiction of the cause unless the appeal is taken as prescribed by law: See Buffendeau v. Edmondson, 24 Cal. 94; Hastings v. Halleck, 10 Cal. 31. The questions arising upon the affidavits filed in this court, to show that the notice of appeal was served the same day that it was filed, have been disposed of in considering the case of Brooks v. Lubbock, ante, p. 210 (preceding ease).

Appeal dismissed.

We concur: Sanderson, C. J.; Currey, J. Justices Sawyer and Shafter, being disqualified, did not participate in. the decision of this ease.