Moore v. Besse , 35 Cal. 184 ( 1868 )

By the Court, Rhodes, J.:

The respondent moves to dismiss the appeal. Only a part of the grounds will be noticed.

The statute does not expressly provide how proof of service of the notice of appeal must be made. It is not doubted that the certificate of the Sheriff, or the admission of the respondent’s attorney, is competent proof of service, but it is insisted that service cannot be proved by the affidavit of a third person. The practice of proving service by affidavit has prevailed for many years, and, so far as we are apprised, without objection until the present time. Service of the notice, if not shown by an official certificate, or by the admission of the party served, must be proven by the affidavit of some competent person. ¡No reason is suggested, and none occurs to us, why less value should be assigned to the affidavit of a third person than to that of the appellant or his attorney.

The affidavit on which the appellant relies for proof of service is defective. The affiant, acting on behalf of the appellant and his attorneys, mailed a copy of the notice at Santa Cruz, directed to the respondent’s attorneys at San Francisco, but he does not state that he, or those for whom he acted, resided at Santa Cruz. The Practice Act (Sec. 521) provides, that “ service by mail may be made when the person making the service, and the person on whom it is to be made, reside in different places, between which there is a regular communication by mail.” The notice of appeal is signed by appellant’s attorney, and he, and not his agent, must be regarded as “ the person making the service.” (Schenck v. McKie, 4 How. Pr. 246.) Ho presumption arises that he resided at Santa Cruz from the circumstance that the action was tried at that place. The fact that he resided there should have been shown by the affidavit, under the rule that a party relying upon substituted service, must show a strict compliance with the requirements of the statute. (People v. Alameda Turnpike Road Company, 30 Cal. 182; Doll v. Smith, 32 Cal. 475.)

Counsel did not offer to supply the facts omitted from the affidavit. We have heretofore indicated the course to be pursued in this respect. When the notice of appeal has been properly served, whether by personal or substituted service, the appellant, upon the hearing of the respondent’s motion to dismiss the appeal on the ground that there is no proof of service, or that the proof is defective, may move for leave to supply the omitted proof. Hpon leave being granted, the appellant may file in the Court below the requisite affidavit, or official certificate of service, and a certified copy thereof may be annexed to the record in this Court. This proof may be made and the certified copy procured before the hearing of the respondent’s motion, when there is sufficient time after the defect is discovered.

Appeal dismissed.

Mr. Justice Sanderson expressed no opinion.