26 Mont. 384 | Mont. | 1902
delivered the opinion of the court.
Motion to dismiss appeal. On December 11, 1901, the plaintiff served the defendant with notice of appeal from a judgment, and on December 19, 1901, caused the same to be filed in the office of the clerk of the court below. On the day last mentioned the plaintiff caused to be filed an undertaking on appeal. The respondent moves a dismissal upon the ground that the undertaking was not filed within five days after -the
Appellant’s counsel advance another argument against the granting of the motion to dismiss. They say that service of the notice of appeal was by mail, — appellant’s counsel residing at Butte, and respondent’s counsel at Great Balls, 172 miles distant, — and that the time within which the appellant was required to file the undertaking was extended one day for every twenty-five miles of distance between the two places. They invoke the provisions of Section 1833 of the Code of Civil Procedure providing that service by mail is complete at the time the notice or other paper is deposited in the postoffice, addressed to the person on whom it is to be served, at his office or jdace of residence, postage paid, “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 bo done, is extended one day for every twenty-five miles distance between tlie place of deposit and the place ef address.” Assuming the facts to be as asserted by counsel, it is enough to. say that the respondent — the party served with the notice — is the adverse party. Under Section 1833, the party serving a notice can never be a party adverse to himself. (Brown v. Green, 65 Cal. 221, 3 Pac. 811.)
The undertaking on appeal was not filed within five days after service of the notice of appeal, and the respondent has not' waived his right to move a dismissal. Upon the authority of Hines v. Carl, 22 Montana Reports, 501, 57 Pacific Reporter, 88, and cases there cited, the motion is granted, and the appeal is dismissed.
Dismissed.