61 Cal. 461 | Cal. | 1882
This case arises out of an action of partition in which the parties to the action are all actors or plaintiffs, each against each and all others. The case comes before us on appeal from the final judgment. On such an appeal it is necessary that notice of appeal should be served upon all the parties respondent, else the appeal will be ineffectual (Senter v. De Bernal, 38 Cal. 638); and, because, as it is contended, notice of the appeal has not been served upon some of the respondents nor their attorneys, a motion is made to dismiss the appeal.
The notice of appeal is dated April 10,1880. At that time the attorney of appellant and some of the parties and the attorney of the parties to be served, resided and had their offices in different counties: The attorney for the appellant resided
According to those provisions, the conditions involved in the fact of service- by mail are: ■ 1. That the person making the service and the person on whom it is to be made reside or have their offices in different places-; and, 2. That there shall be a regular mail communication between the “ places.” Upon the existence of these conditions service may be made upon the party or his attorney by depositing the notice in the post-office, addressed to the person to be served, at his office or place of residence, and the postage paid. When the deposit is made in the post-office the service is deemed complete. (§ 1013, supra.)
The attorney for the appellant caused a copy of the notice of appeal, properly directed, etc., to be mailed at San José, where he neither resided nor had an office, and did not mail it at San Rafael, where he did reside. But between San José and the places named there was a regular communication by mail; and the question arises, in what post-office must the deposit of the notice be made to constitute service ? Can it be made in any of the counties of the State ?
Undoubtedly the object of depositing the notice in a post-office, in the manner prescribed by the law, is the transmission of the notice by mail to the person to whom it may be directed. For that purpose the notice must be deposited in one or other of the post-offices of the places where the parties have their residences or offices, because these are the only places mentioned in the Code within the conditions of service. But a deposit in a post-office in the county or place in which a party who may be served by mail has his residence or office, would not constitute service on him by mail, because a service on him at his residence or office in his own county, to be effectual, must be made personally or construct
Service by mail is good only where the person making the service and the person on whom it is to be made reside in different places, between which there is a regular mail communication ; and the affidavit of service must show a strict compliance with the provisions of the statute, otherwise the evidence must be held insufficient to establish the fact of service. (People v. Turnpike Co., 30 Cal. 182.) In other words, when service is sought to be made by mail, it should appear that the conditions on which the validity of such service must depend had existence, otherwise the evidence will be deemed insufficient to establish the fact of service. (Clark v. Adams, 33 Mich. 164.)
In People v. Turnpike Co., supra, the affidavit of service omitted to show the existence of a regular communication by mail between the two places of the residences of the attorneys for the appellants and the respondents; and the appeal was dismissed because there was no effectual service of the notice. In Moore v. Besse, 35 Cal. 184, the affidavit of service omitted to show that the attorney making the service resided at the place where the notice of appeal was mailed, and the appeal was also dismissed because the service was insufficient.
In the case in hand the record shows affirmatively that the attorney who made the attempted service did not reside at the place where he mailed the copy of the notice of appeal J and it follows, upon principle as well as precedent, inasmuch as the attempted service of the notice of appeal has not been made according to the provisions of Section 1013 of the Code of Civil Procedure, that the appeal must be dismissed. This Court does not acquire jurisdiction of an appeal, unless the
Appeal dismissed.
Morrison, C. J., Sharpstein and Myrick, JJ., concurred.
