Columbet v. Pacheco

46 Cal. 650

Opinion

By the Court:

The motion to dismiss the appeal taken on March 5th, 1873, must be denied. The attempted appeal of February, 1873, was ineffectual, because, though the notice of appeal and undertaking on appeal were filed on the same day, the notice of appeal was not served until two days thereafter. We think that under section nine hundred and forty, Code of Civil Procedure, the filing of notice of appeal, filing the undertaking, and service of the notice, must be effected “ at the same time ”—that is to say, - on the same day-—for we will not regard fractions of a single day for this purpose. The service of the notice may be personal in the usual mode, or it may be effected in any of the other modes provided in the Code. (Secs. 1011, 1012, et seq.) That the notice of appeal, however, must be served actually or constructively at the same time that the undertaking on appeal is filed is apparent, in view of "the provisions of section nine hundred and forty-eight, by which the time to except to the sufficiency of the sureties upon the undertaking on appeal is limited to “ thirty days after the filing of such undertaking” It would be unreasonable to hold that this period of time may run against the respondent, without his having had notice in some mode that the undertaking had been actually filed in the Clerk’s office, and the Code having failed to provide for a special notice of that fact, we think it was intended that the service of the notice of appeal should itself operate such notice.

Motion denied.