From Casetext: Smarter Legal Research

Mendioca v. Orr.

Supreme Court of California
Oct 1, 1860
16 Cal. 368 (Cal. 1860)

Opinion

         Appeal from the County Court-of Santa Cruz.

         Action for forcible entry, etc. For facts, see opinion.

         Defendant appeals from the judgment of dismissal.

         Judgment reversed and cause remanded.

         COUNSEL

          Wm. T. Gough, Henry Wilson and Sol. A. Sharp, for Appellant.

          John Garber, for Respondent.


         JUDGES: Cope, J. delivered the opinion of the Court. Baldwin, J. concurring.

         OPINION

         COPE, Judge

         In this case, an appeal from a Justice's Court to the County Court of Santa Cruz county was dismissed, on the ground that the record did not show that the notice of appeal had been served upon the adverse party. The appellant offered to prove by affidavit that the service had in fact been made, but the Court declined to admit the proof. This was clearly erroneous. The fact of service was the important matter, and it was of no consequence that its existence was not shown by the record. If the service was made, the jurisdiction had attached; and to show that it was made, the affidavit of the appellant was competent and proper evidence.

         Judgment reversed and cause remanded.


Summaries of

Mendioca v. Orr.

Supreme Court of California
Oct 1, 1860
16 Cal. 368 (Cal. 1860)
Case details for

Mendioca v. Orr.

Case Details

Full title:MENDIOCA et als. v. ORR.

Court:Supreme Court of California

Date published: Oct 1, 1860

Citations

16 Cal. 368 (Cal. 1860)

Citing Cases

Dalzell v. Superior Court

But pending the motion made to dismiss the appeal on that ground, appellant's attorney filed an affidavit…