Dinan v. Stewart

Full title: DINAN v. STEWART

Court: Supreme Court of California

Date published: Jul 1, 1874

48 Cal. 567 (Cal. 1874)

Opinion

48 Cal. 567 DINAN v. STEWART No. 4,469 Supreme Court of California July, 1874

         Motion to dismiss an appeal, on the certificate of the Clerk below, from a failure to file the transcript within the time required by the rules of the Court.

         JUDGES: Wallace, C. J.

         OPINION

          WALLACE, Judge

         It appears by the certificate of the Clerk of the Court below, filed here in support of the motion to dismiss the appeal, that the notice of appeal was filed on the 28th day of April, 1874, but was not served on the respondent's attorney until the 1st day of May, 1874.          In Columbet v. Pacheco (46 Cal. 650), we held that, under section nine hundred and forty of the Code of Civil Procedure, it was necessary to the taking of an appeal, that the filing and service of the notice should be effected on the same day. It appearing, therefore, that no appeal has been taken in this case, the motion to dismiss the appeal must be denied.

         The amendment to section nine hundred and forty of the Code of Civil Procedure, if it changed the rule in this respect, did not take effect until July 1, 1874, and, therefore, does not apply to this case.

         Motion denied.