From Casetext: Smarter Legal Research

Whipley v. Mills

Supreme Court of California
Apr 1, 1858
9 Cal. 641 (Cal. 1858)

Opinion

         Appeal from the District Court of the Sixth Judicial District, County of Sacramento.

         COUNSEL:

         Smith, Edwards & Baldwin, for Appellant.

          Winans & Hyer, and Heydenfeldt, for Respondent.


         JUDGES: Burnett, J., delivered the opinion of the Court. Field, J., concurring.

         OPINION

          BURNETT, Judge

         The judgment in this case was rendered on the 29th of March, 1852. Notice of appeal filed in the Clerk's office April 15th, 1852, and transcript on appeal filed in this Court June 17th, 1857. The record contains no evidence that a copy of the notice was served upon the appellee, as required by the 337th section of the Code.

         The appeal is made by filing and serving the notice. Both requisites must exist to complete the appeal. If either could be omitted, it would be the filing of the notice. A failure to notify the other party is more material than a failure to file in the Clerk's office. No copy of the notice having been served upon the appellee, he had no opportunity to move to dismiss the appeal. The result was that the transcript is made out and sent up more than five years after filing the notice of appeal. (Franklin v. Reiner , 8 Cal. 340.)

         The appeal must be dismissed.


Summaries of

Whipley v. Mills

Supreme Court of California
Apr 1, 1858
9 Cal. 641 (Cal. 1858)
Case details for

Whipley v. Mills

Case Details

Full title:WHIPLEY v. MILLS

Court:Supreme Court of California

Date published: Apr 1, 1858

Citations

9 Cal. 641 (Cal. 1858)

Citing Cases

United States v. Crooks

The appeal ought to be dismissed because of the failure of appellant to serve notice of appeal on his…

Tucker v. Brown

[58] Before proceeding with a discussion of the cases, we desire again to call attention to the fact that…