83 Cal. 574 | Cal. | 1890
— 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
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
The statute does not in terms require the notice to be deposited in the post-office at any particular place, the essential things being simply residence in different places (if the parties reside in the same place the service should and must be personal), and the fact of regular mail communication between the place where it is mailed and the place to which it is sent. “ 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,” is the language of the section (1013) which directs how service by mail is to be made. There is nothing in the language of this or any other statute indicating an intention on the part of the legislature to require the party making the service to deposit the paper in any particular one of the post-offices of this state having regular mail communication with the place to which the paper is to be sent. There can be no good reason assigned for such a construction or for such a provision, The fact that, under the construction which we give to the section, the paper may be sent from a place in the central part of the state to one end of the state, and there mailed to the party to be served living in the other end of the state, is a thing not at all likely to occur, and could not prejudice the rights of the respondent if service should be made in that way. It is provided that “ the service is complete 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 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
Motion denied.
McFarland, J., Fox, J., Beatty, C. J., and Sharp-stein, J., concurred.