Wright v. Ross
STEPHEN A. WRIGHT v. ANN S. ROSS
Headnotes
Summary
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
Opinion of the Court
Text extracted by OCR from a scanned original; check the original for exact wording.
By the Court, Sawyer, J.
Respondents move to dismiss the appeal, on the ground that there was no service of notice of appeal after it was filed with the Clerk.
The notice appears by the record to be indorsed, “ Filed July 13, 1864;” and under this is an indorsement of admission of service, also dated, “ this 13th day of July, 1864.” The necessary inference would be that the filing preceded the service. But the affidavit of respondents’ attorney shows that the service in the order of time actually preceded the filing, while that of appellant’s attorney shows that the service was made in the Court-room, and the notice immediately taken to the Clerk, in the adjoining room, and filed; and that not to exceed five minutes was required to accomplish both the service and filing. This must be regarded as one act. The record indicates the proper order of proceedings, and it is at least doubtful whether affidavits could be received to show a different order. But this must be regarded as one continuous transaction. The whole was done at one time; and in Hastings v. Halleck, 10 Cal. 31 , and Warner v. Holman, 24 Cal. 248 , it was held that, “ the service should be made after, or at the time of the filing of the notice.” The notice is sufficient.
Motion denied.
How later courts describe this case
No later court has written an explanatory parenthetical about this case yet.
Cited by 2 cases
View all citing references →Relies on it most ⓘ
Most recent
Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.