Lightstone v. Laurencel

2 Cal. 106

• Court: California Supreme Court
• Decided: January 15, 1852
• Status: Published

Opinion

Justice Heydenfeeldt

delivered the opinion of the Court. This

is a motion of the appellant to set aside the affirmance of judgment made at the last term, and restore the cause to the calendar, on the ground that he had no notice of trial, as was required by the rules of Court then in existence. He also files his affidavit, declaring that he had no actual notice.

We have before decided that we would not disturb a decision for the want of a formal statutory notice, where it appeared clearly that the party had actual notice. In this case, the papers disclose that the appellant did not have the notice required by the rules; the affirmance was for default of his appearance; and it is nowhere shewn that he had actual notice. Besides, his affidavit is additional weight to satisfy us that he had not.

The judgment of affirmance must he set aside; and the cause restored to the calendar.