Lyon County v. Washoe County

By the Court, Belknap, J.:

The respondent moves to dismiss the appeal. One of the reasons assigned for the motion is that the copy of the notice of appeal was served before the notice of appeal was filed with the clerk of the district court.

*178 The only evidence of service of a copy of tbe notice of appeal is contained in tbe following affidavit of Jobn Powell, Jr.: “-that on Sunday, June 18tb, 1871, according to bis best recollection and belief, be deposited at tbe post-office at Dayton, Nevada, a copy of said notice of appeal and a copy of said proposed statement on appeal, directed to R. M. Clarke, Esq., attorney, etc., Carson, Nevada, and paid tbe postage thereon. * * * ” If any service is proven by this affidavit it is on June 18, 1871. Tbe transcript shows that tbe notice of appeal was filed June 19, 1871. It is well settled, that to render an appeal effectual tbe filing of tbe notice of appeal must precede or be eotemporaneous with tbe service of tbe copy: otherwise that which purports to be a copy fails as such for want of an original to support it. Buff&ndeauY. Edmondson, 24 Cal. 94 ; Moulton y. Ellmaker, 30 Cal. 527 ; Boston y. Haynes, 31 Cal. 107 ; Foy v. Borneo, 33 Cal. 317 ; Lynch v. Bu/nn, 34 Cal. 518 . It is ordered that tbe appeal be dismissed.